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United States v. Prayer

United States District Court, D. Nebraska

January 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON E. PRAYER, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge

         This 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.

         I. BACKGROUND

         Prayer 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.

         Prayer 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.[1] 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).[2]

         The 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.

         The 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. 2016).[3]

         II. DISCUSSION

         Under 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).

         The 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 another, or
(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).

         Under 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)).[4] 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 ...


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