United States District Court, D. Arizona
Derrick L. McCreary, Movant/Defendant,
United States of America, Respondent/Plaintiff.
HON.SUSAN R. BOLTON UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE
February 16, 2017, the Ninth Circuit Court of Appeals granted
Movant's application to file a second or successive 28
U.S.C. § 2255 motion and transferred his case to the
District Court, as Movant had made a prima facie showing for
relief under Johnson v. United States, 135 S.Ct.
2551 (2015). (CVDocs. 3-2, 4.) Movant was convicted after a jury
trial of one count of conspiracy, in violation of 18 U.S.C.
§ 371, two counts of armed bank robbery, in violation of
18 U.S.C. § 2113(a) and (d); and two counts of
brandishing a firearm during the commission of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
(CRDocs. 208, 272.) On March 5, 2005, Movant was sentenced to
a total of 600 months' imprisonment. (CRDoc. 271.)
Movant's convictions were affirmed on direct appeal.
United States v. McCreary, 308 Fed.Appx. 39 (9th
Cir. 2008) (CRDoc. 309). Movant also filed previous §
2255 motions, raising various grounds for relief. All were
denied by the Court.
Movant's current § 2255 motion, he asserts that his
convictions under 18 U.S.C. § 924(c) are invalid
pursuant to Johnson. (CRDoc. 364; CVDoc. 3 at
12-21.) In Johnson, the Supreme Court declared that
the residual clause of § 924(e), under the Armed Career
Criminal Act, was unconstitutionally vague. Movant was
sentenced pursuant to § 924(c) which defines
“crime of violence, ” and contains a “force
clause, ” and a “residual clause.” §
924(c)(3)(A) and (B). Movant claims that armed bank robbery
is a crime of violence under the “residual clause,
” and since that clause is similarly worded to the
residual clause of § 924(e), under Johnson that
clause is also unconstitutionally vague. He reasons:
[b]ecause unarmed bank robbery under § 2113(a) does not
have as an element the use, attempted use, or threatened use
of violent force as defined in Johnson 2010, it does
not qualify as a “crime of violence” under the
force clause. For that reason, armed bank robbery also does
not qualify under the force clause as it only adds the
additional element of “use of a dangerous weapon or
device.” 18 U.S.C. § 2113(d). ... And because the
residual clause is unavailable under Johnson,
neither armed nor unarmed bank robbery under § 2113(a)
or (d) amount to a “crime of violence” under 18
USC § 924(c)(3).
(CRDoc. 364 at 8.)
Court entered a stay of this matter on March 20, 2017,
“pending the Ninth Circuit's decision in United
States v. Begay, No. 14-10080, and the Supreme
Court's decision in Lynch v. Dimaya, No. 15-1498
(cert. granted Sept. 29, 2016).” (CVDoc. 11.) On May 4,
2018, Respondent filed a Motion to Vacate Stay and Motion to
Dismiss Movant's § 2255 motion. (CVDoc. 14.)
Respondent moves to lift the stay as Dimaya has been
decided by the Supreme Court,  and does not form a basis for
relief, and a continued stay to await a decision by the Ninth
Circuit in Begay is unnecessary, as there is now
binding Ninth Circuit precedent directly addressing
Movant's claims. (CVDoc. 14.)
binding Ninth Circuit precedent, Respondent asserts,
forecloses Movant's claim. 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.”).
Response, Movant asserts to the contrary that armed bank
robbery is not a crime of violence, as “[a]rmed bank
robbery is broader than the § 924(c) elements clause for
several reasons.” (CVDoc. 15 at 2.) He also asserts
that the offense is “indivisible, [and that] courts may
not resort to the modified categorical approach to cure its
overbreadth.” (Id.) Movant, however, provides
no authority for these arguments. Movant further requests
that the stay in this matter should be continued, as the
decision in Watson may be reviewed by the Supreme
Court, and that in Watson, a petition for writ of
certiorari will be filed. (CVDoc. 15 at 2.) The Court
however, “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).
light of the fact that there is no basis for continuing the
stay in this matter, and in light of Ninth Circuit precedent
foreclosing Movant's claim, this Court will recommend
that the stay be lifted and Movant's § 2255 motion
be denied and dismissed with prejudice.
IS THEREFORE RECOMMENDED that Movant's Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.
§2255, (CRDoc. 364; CVDoc. 3 at 12-21), be denied and
dismissed with prejudice.
IS FURTHER RECOMMENDED that the Court deny a
Certificate of Appealability and leave to proceed in forma
pauperis on appeal because Movant has not made a substantial
showing of the denial of a constitutional right.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district
court's judgment. The parties shall have fourteen days
from the date of service of a copy of this recommendation
within which to file specific written objections with the
Court. See 28 U.S.C. § 636(b)(1); Rules 72,
6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the
parties have fourteen days within which to file a response to
the objections. Pursuant to Rule 7.2, Local Rules of Civil
Procedure for the United States District Court for the
District of Arizona, objections to the Report and
Recommendation may not exceed seventeen (17) pages in length.
Failure timely to file objections to the Magistrate
Judge's Report and Recommendation may result in the
acceptance of the Report and Recommendation by the district
court without further review. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003). Failure timely to file ...