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, Lance L. Bartling, Jr.,
ECF No. 180. Defendant also filed a Brief in Support of his
§ 2255 Motion, ECF No. 181. 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 II);
Using, Carrying, or Brandishing a Firearm During a Crime of
Violence in violation of 18 U.S.C. § 924(c)(1) (Count
III); and Attempted Credit Union Robbery (Count VI); the
Defendant received a sentence of 60 months incarceration on
Counts II and VI, to run concurrently, and 84 months
incarceration on Count III, to be served consecutive to
Counts II and VI, to be followed by four years of supervised
release. The Defendant did not appeal his
§ 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, 580 U.S.__, No. 15-8544,
2017 WL 855781 (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. 176, reveals that the
Defendant received a two-level sentencing enhancement under
U.S.S.G. § 2B3.1 with respect to Counts II and VI for
robbing financial institutions. With respect to Count III,
the Defendant received an additional 84 month sentence
pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) for using,
carrying, or brandishing a firearm during and in relation to
a “crime of violence.” Now, the Defendant
contends that Johnson and Welch invalidate
his sentence. See ECF No. 181, Page ID 548-51.
Defendant received no sentencing enhancement under USSG
§ 4B1.2. 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 Counts II and VI, his argument
lacks merit. To the extent the Defendant is challenging his
additional 84-month sentence on Count III pursuant to 18
U.S.C. § 924(c)(1)(A) for using, carrying or 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, 572 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 certain
factors distinguish § 924(c)(3)(B) from the residual
clause at issue in Johnson, and 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 any question as to the constitutionality of
§ 924(c)(3)(B), the Defendant's armed bank robbery
conviction 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, the Defendant's argument lacks merit and the
§ 2255 Motion will be summarily dismissed.
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 ...