United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on Brandon E. Prayer's
(hereinafter, “defendant”) amended motion to
vacate, set aside, or correct his sentence under § 2255.
Filing No. 71. He challenges his conviction and
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 present motion is Prayer's first motion under 28
U.S.C. § 2255. The court held a hearing on November 17,
2016, and ordered additional briefing.
was charged in a five count superseding indictment with three
counts of bank robbery in violation of 18 U.S.C. § 2113
and two counts of carrying and brandishing a firearm in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(C). The crimes of violence were two of the
bank robberies. On August 3, 2007, Prayer entered pleas of
guilty to all three bank robbery charges and to one count of
brandishing a firearm, in violation of 18 U.S.C. §
924(c). Filing No. 48. He was sentenced to three concurrent
terms of 110 months' imprisonment for the bank robberies
and to an additional consecutive 84 months for the weapons
charge. Filing No. 58.
seeks relief under Johnson v. United States, 135
S.Ct. 2551 (2015). In that case, the Supreme Court held that
“imposing an increased sentence under the residual
clause under the Armed Career Criminal Act [of 1984
(("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), ]
violates the Constitution's guarantee of due
process.” Id. at 2563. The portion of the ACCA
that the Court found unconstitutionally vague defined
“violent felony” to include an offense that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id.
at 2555-56 (emphasis omitted) (quoting 18 U.S.C. §
924(e)(2)(B)(ii)). Consequently, imposing an increased
sentence pursuant to the residual clause of the ACCA, 18
U.S.C. § 924(e)(2)(B)(ii), violates due process under
the Fifth Amendment. Id. at 2563. 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).
Supreme Court later found that, to determine whether a prior
conviction is for a generic form of burglary, arson, or
extortion, as predicate violent felony offenses under the
ACCA, courts must apply a categorical approach, which focuses
solely on whether the elements of the crime of conviction
sufficiently match the elements of the generic offense, i.e.,
the elements for the crime of conviction are the same as, or
narrower than, those of the generic offense, while ignoring
the particular facts of the case. Mathis v. United
States, 136 S.Ct. 2243, 2248 (June 23, 2016). A crime
that criminalizes a broader swath of conduct than the generic
offense of burglary cannot qualify as an ACCA predicate.
Id. at 2251.
defendant argues, in light of Johnson and
Mathis, 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. He contends that his conviction for
carrying or brandishing a firearm during and in relation to a
crime of violence is invalid because bank robbery under 18
U.S.C. § 2113(a) is not a crime of violence and cannot
subject him to conviction under 18 U.S.C. §924(c). The
government argues that the defendant's positon is
foreclosed by Eighth Circuit precedent, citing United
States v. Prickett, 839 F.3d 697, 698 (8th Cir.
28 U.S.C. § 2255, a court may grant relief to a federal
prisoner who moves to vacate, set aside or correct his
sentence on any of the following grounds: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose such sentence; (3) that the sentence
was in excess of the maximum authorized by law; or (4) that
the sentence is otherwise subject to collateral attack. 28
U.S.C. § 2255(a). Section 2255
provides a person in federal custody with a limited
opportunity to collaterally attack the constitutionality,
jurisdictional basis, or legality of his sentence.
See United States v. Addonizio, 442 U.S.
178, 185 (1979). Relief is reserved for violations
of constitutional rights and for a narrow range of injuries
that are outside the ambit of a direct appeal and which, if
untreated, would result in a miscarriage of justice.
See Poor Thunder v. United States, 810 F.2d
817, 821-22 (8th Cir. 1987).
statute at issue provides specified mandatory minimum
consecutive sentences for persons convicted of a “crime
of violence” who possess, use, carry or brandish a
firearm during and in relation to or in furtherance of that
violent crime. 18 U.S.C. § 924(c)(1)(A). For the
purposes of § 924(c), a “crime of violence”
is defined as an offense that is a felony and
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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).
Eighth Circuit precedent, the residual clause, §
924(c)(3)(B), is not void for vagueness under
Johnson. Prickett, 839 F.3d at 699 (joining
the Second and Sixth Circuits in upholding §
924(c)(3)(B) against a vagueness challenge because several
factors distinguish the ACCA residual clause from §
924(c)(3)(B)). This court also finds that where a
companion conviction is the predicate crime that underlies
the 924(c) conviction, the Johnson rationale and
holding are not applicable. Under the present circumstances,
the qualitative standard of “substantial risk” is
applied to the defendant's real world conduct and not to
an abstraction. This court is not asked to conduct a cold
review of a prior conviction to determine whether its
elements square with the ...