United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court for initial review of a Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
Motion") filed by the Defendant, Ronald Williams, ECF
No. 65. Defendant has also filed a Motion to Supplement his
§ 2255 Motion, ECF No. 71. Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts requires initial review of a defendant's §
2255 motion. Rule 4(b) states:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
being found guilty of the offenses of Bank Robbery in
violation of 18 U.S.C. § 2113(a) and (d) (Count I), and
of using a weapon during a crime of violence in violation of
18 U.S.C. § 924(c)(1) (Count II), the Defendant received
a sentence of 84 months incarceration on Count I and 84
months incarceration on Count II, to be served consecutively,
to be followed by five years of supervised release. Judgment
was entered on October 8, 2002. ECF No. 43. The Defendant
appealed his conviction, and the conviction was affirmed on
appeal. ECF No. 63.
§ 2255 Motion, the Defendant asserts that the sentence
should be vacated pursuant to the Supreme Court's
decisions in Johnson v. United States, 576 U.S.___,
135 S.Ct. 2551 (2015), and Welch v. United States,
___U.S.___, 136 S.Ct. 1257 (2016).
Johnson, the Supreme Court held the residual clause
of the Armed Career Criminal Act of 1984, 18 U.S.C. §
924(e)(1), (the “ACCA”), to be unconstitutionally
vague, and therefore void. In Welch, the Supreme
Court held “that Johnson is retroactive in
cases on collateral review[.]” 136 S.Ct. at 1268.
Beckles v. United States, No. 15-8544 (March 6,
2017), the Supreme Court held that the United States
Sentencing Guidelines (“USSG”), including the
residual clause of USSG § 4B1.2(a), which contained
language identical to the residual clause in the
ACCA, are not subject to vagueness challenges
under the Due Process Clause.
review of the Defendant's Presentence Investigation
Report (“PSR”), ECF No. 55, reveals that the
Defendant received a two-level sentencing enhancement under
U.S.S.G. § 2B3.1 with respect to Count I for robbing a
financial institution. With respect to Count II, the
Defendant received an additional 84 month sentence pursuant
to 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a
firearm during and in relation to a “crime of
violence.” The Defendant contends that Johnson
and Welch invalidate his sentence. See ECF
No. 65, Page ID 262-63.
Defendant received no sentencing enhancement under U.S.S.G.
§ 4B1.2, but even if he had, the Supreme Court's
decision in Beckles would not invalidate such an
enhancement. Thus, to the extent the Defendant is challenging
his sentence with respect to Count I, his argument lacks
merit. To the extent the Defendant is challenging his
additional 84 month sentence on Count II pursuant to 18
U.S.C. § 924(c)(1)(A) for brandishing a firearm during
and in relation to a “crime of violence, ” his
argument also lacks merit.
924(c)(1)(A) “prohibits ‘us[ing] or
carr[ying]' a firearm ‘during and in relation to
any crime of violence or drug trafficking crime.'”
Rosemond v. United States, ___ U.S.___, 134 S.Ct.
1240, 1243 (2014) (quoting 18 U.S.C. § 924(c)(1)(A). A
seven-year (84 months) mandatory minimum sentence is
applicable where the firearm is “brandished.” 18
U.S.C. § 924(c)(1)(A)(ii). A “crime of
violence” means a felony that either “(A) has as
an element the use, attempted use, or threatened use of
physical force against the person or property of another,
” or “(B) 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).
Clause (A) is referred to as the “elements
clause” and clause (B) is referred to as the
“residual clause, ” not to be confused with the
residual clause of § 924(e)(1) which was the subject
clause in Johnson. United States v.
Enriques, No. 8:08CR383, 2016 WL 4273187, at *9 (D. Neb.
Aug. 12, 2016).
§ 924(c)(3)(B) has been recognized as resembling the
unconstitutionally vague residual clause of § 924(e)(1),
the Eighth Circuit Court of Appeals has held that because
factors distinguish § 924(c)(3)(B) from the residual
clause at issue in Johnson it is constitutionally
valid. United States v. Prickett, 839 F.3d 697,
698-99 (8th Cir. 2016) (citing United States v
.Taylor, 814 F.3d 340, 375-76 (6th Cir. 2016).
Notwithstanding the constitutionality of § 924(c)(3)(B),
the Defendant's armed bank robbery conviction nonetheless
constitutes a “crime of violence” under §
924(c)(3)(A), the elements clause. See Allen v. United
States, 836 F.3d 894 (8th Cir. 2016) (stating
“bank robbery in violation of 18 U.S.C. § 2113(a)
and (e) is a ‘crime of violence' under 18 U.S.C.
§ 924(c)(3)(A)”); See also United States v.
McNeal, 818 F.3d 141, 152-53 (4th Cir. 2016) (holding
“armed robbery [under 18 U.S.C. § 2113(a) &
(d)] is unquestionably a crime of violence, because it
‘has as an element the use, attempted use, or
threatened use of physical force.'”); In re
Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (“[A]
conviction for armed bank robbery [under 18 U.S.C. §
2113(a) & (d)] clearly meets the requirement . . . to
include as an element, ‘the use, attempted use, or
threatened use of physical force against the person or
property of another.'”).
Defendant was convicted of armed bank robbery under 18 U.S.C.
§ 2113(a) and (d) where subsection (d) includes as an
element “assault[ing] any person, or put[ting] in
jeopardy the life of any person by the use of a dangerous
weapon or device . . . .” 18 U.S.C. § 2113(d).
Thus, a conviction under 18 U.S.C. § 2113(d) is
sufficient to operate as a predicate “crime of
violence” under 18 U.S.C. § 924(c)(3)(A). See
McNeal, 818 F.3d at 152; see also Hines, 824
F.3d at 1337. Therefore, because Eighth Circuit precedent
supports the constitutionality of 18 U.S.C. §
924(c)(3)(A) & (B), which defines a crime of violence,
and because the Defendant's conviction pursuant to 18
U.S.C. § 2113(a) and (b) clearly constitutes a crime of
violence under 18 U.S.C. § 924(c)(1)(A), the
Defendant's argument lacks merit and the § 2255
Motion will be summarily dismissed. The Defendant's
Motion to Supplement will also be dismissed as moot.
IT IS ORDERED:
the Court completed initial review of the Defendant's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in ...