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United States v. Enriques

United States District Court, D. Nebraska

August 12, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DEVIN M. ENRIQUES, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge

         This matter is before the court on the petitioner’s (hereinafter, “defendant's”) amended motion to vacate, set aside, or correct his sentence under § 2255. Filing No. 133. He challenges his conviction and his seven-year mandatory minimum sentence for using, carrying and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

         The defendant seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), which defined “violent felony” as a crime that “involves conduct that presents a serious potential risk of physical injury to another” as unconstitutionally vague in violation of due process of law. Id. at 2557. The Supreme Court found the clause unconstitutionally vague in violation of due process of law and consequently it is no longer enforceable. Id. The decision in Johnson was given retroactive effect in cases on collateral review by the Supreme Court. Welch v. United States, 136 S.Ct. 1257, 1265 (2016). The present motion is Mr. Enriques’s first motion under 28 U.S.C. § 2255. The court held a hearing on June 23, 2016, and requested additional briefing on the effect of the recent Supreme Court decision in Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016) (clarifying that where a crime has various means of committing a single element that is broader than the generic offense, that broader crime cannot serve as an ACCA predicate and noting that courts may only consider the elements that would have to be found by a jury or admitted-not mere alternative factual means by which a crime could be committed-in determining whether a prior conviction meets a federal statute's classification of prior offenses).

         Enriques argues, in light of Johnson and Mathis, that his conviction for use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), is invalid. He contends that bank robbery and conspiracy to commit bank robbery are not crimes of violence and can no longer be used as predicate crimes under 18 U.S.C. § 924(c). He first contends that Johnson invalidates the residual clause of the “crime of violence” definition in 18 U.S.C. § 924(c)(3)(B) because that clause and the residual clause invalidated in Johnson are nearly identical. Therefore, he argues that to be considered a crime of violence under § 924(c)(3), the offenses must fit within the “force clause” found in § 924(c)(3)(A). He also contends, under Mathis, that the court must employ the “categorical approach”-focusing solely on whether the elements of the crime of conviction sufficiently match the elements of the generic crime and ignoring the particular facts of the case-in making the determination. See Mathis, 136 S.Ct. at 2248. He argues that bank robbery does not categorically require the element of “use, attempted use, or threatened use of physical force against the person or property of another” because the statute also criminalizes bank robbery by intimidation and bank robbery by means of extortion. Essentially, he contends that the statutory elements of bank robbery are broader than the elements of the generic crime and accordingly, his conviction for bank robbery cannot count as a predicate crime of violence that supports his § 924(c) conviction.

         The government argues that Johnson has no application to the defendant’s case because the defendant's conviction for bank robbery qualifies as a crime of violence under the use-of-physical-force clause contained in § 924(c)(3)(A). It cites United States v. McNeal, 818 F.3d 141, 152-53 (4th Cir. 2016), pet. for cert. filed, No. 16-5018 (June 23, 2016) in support of that proposition. It further argues that nothing in Mathis undermines the reasoning of McNeal.

         I. FACTS

         The defendant was charged in the Second Superseding Indictment with two counts of conspiracy to commit bank robbery and to use, carry and brandish a firearm in furtherance of that crime. Filing No. 51, Second Superseding Indictment at 2. Count 1 related to a robbery that occurred on September 4, 2008 and Count 2 related to a robbery that was to have occurred at the Tier One Bank located at 9775 Q Street in Omaha on October 6, 2008, but was cancelled. Id. at 3-4. Counts 3 and 4 of the Second Superseding Indictment charged as follows:

         COUNT 3

13. On or about the 4th day of September, 2008, in the District of Nebraska, DEVIN M. ENRIQUES, did by force, violence, and intimidation, take from the person and presence of a teller and other employees, United States currency belonging to and in the care, custody, control, management and possession of the TierOne Bank, 8820 Arbor Street, Omaha, Nebraska, the deposits of which were then insured by the Federal Deposit Insurance Corporation.
14. The above offense was committed and carried out in the course of, and in furtherance of, the conspiracy set forth in Count 1 of the Indictment and while MARQUITA JENSEN was a member of the conspiracy. In violation of Title 18, United States Code, Section 2113(a) and 2.

         COUNT 4

15. On or about the 4th day of September, 2008, in the District of Nebraska, DEVIN M. ENRIQUES, during and in relation to a crime of violence for which he may be prosecuted in a Court of the United States, did brandish a firearm, in that during the robbery of the TierOne Bank as charged in Count l of this Indictment, DEVIN M. ENRIQUES, did brandish and display a handgun.
16. The above offense was committed and carried out in the course of, and in furtherance of, the conspiracy set forth in Count 1 of the Indictment and while MARQUITA JENSEN was a member of the conspiracy.
In violation of Title 18, United States Code, Section 924(c)(1)(A)(ii) and 2.

Filing No. 51, Second Superseding Indictment at 5-6. In his Petition to Enter a Plea of Guilty, in response to the inquiry "what acts did you do that cause you to think you are guilty of the charges of which you want to plead guilty?" the defendant responded, "I participated in bank robberies." Filing No. 68, Petition to Enter a Plea of Guilty at 13.

         Mr. Enriques pled guilty to Counts 1 through 4 of the Second Superseding Indictment on July 10, 2009. Filing No. 72, Transcript of Plea Hearing ("Plea Hr'g Tr."). There is no plea agreement in this case. See Filing No. 90, Presentence Investigation Report ("PSR") (sealed) at 7. At the change of plea hearing, the court explained the elements that the government would have to prove if the defendant went to trial as follows:

THE COURT: Now, with respect to Count III, they would have to prove that you actually committed the bank robbery, and that's the bank robbery at 88th and Arbor Street.
So they would have to prove that you took money from a person or teller or other employee of the Tier One Bank at 8820 Arbor Street. They would have to prove that you took it by force or violence or intimidation. And they would have to prove that the deposits of the Tier One Bank were then insured by the Federal Deposit Insurance Corporation. Do you understand that's what they would have to prove with respect Count III?
THE DEFENDANT: Yes, sir.
THE COURT: For Count IV they would have to prove that you committed the bank robbery at 8820 Arbor Street. That's the bank robbery in Count I and Count III. So they would have to prove that you committed the bank robbery. They would have to prove that when you committed the bank robbery, you used or carried a firearm during that bank robbery. Do you understand that's what they would have to prove?
THE DEFENDANT: Yes.

Filing No. 72, Plea Hr'g Trans. at 6-7. The defendant then stated that he freely and voluntarily gave up his rights. Id. at 14-15. The record shows the defendant offered an unconditional plea to Count 2, conspiracy to commit bank robbery of the TierOne bank at 97th and Q streets in Omaha. Id. at 16. He admitted he “worked with somebody else in order to rob the bank.” Id. at 18. However, he offered an Alford-type plea to Counts 1, 3, and 4.[1] Id. at 18. Defense counsel stated:

[DEFENSE COUNSEL]: Judge, at this time Mr. Enriques would either plead no contest or do an Alford-type plea in regards to those counts.
THE COURT: An Alford plea, as I understand it, would be that Mr. Enriques pleads guilty, but is not willing to admit that he actually committed the crime; is that correct?
[DEFENSE COUNSEL]: that's correct.

Id. at 17-18. Defense counsel went on to explain:

[DEFENSE COUNSEL]: Judge, Mr. Enriques and I have gone over the possible defenses at trial.
We believe that trial is not in his best interest due to the disparity in some of the guideline ranges and some of the possible arguments we would have at sentencing with regards to him.
Also I believe that part of the information that would be sought from Mr. Enriques would involve possible co-defendants or other people that are not in custody at this time.
And Mr. Enriques believes it's in his best interest not to either implicate or give any information that might come back to hurt him or his family in regards to that.

Id. at 18. The government then related the following factual basis:

[PROSECUTOR]: Yes, Your Honor. On October 5, 2008, a confidential informant contacted the Omaha Police Department and the FBI to provide information regarding a planned bank robbery that was to occur the following day.
The confidential informant stated that his longtime acquaintance, Devin Enriques, asked him to participate in robbing the Tier ...

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