United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
matter is before the Court on defendant James G. Allee's
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255, Filing No. 348, and motion for a status
update, Filing No. 349. He challenges his convictions for
firearms offenses under 18 U.S.C. § 924(c).
March 6, 2001, James G. Allee entered pleas of guilty to the
following counts of the superseding indictment: Count I
(conspiring to commit bank robbery, in violation of 18 U.S.C.
§ 2113)(a) &(d)); Count II (bank robbery with use of
a dangerous weapon in violation of 18 U.S.C. § 2113
(d)); Count Ill. (use of a weapon in during commission of a
violent crime, in violation of 18 U.S.C. §
924(c)(1)(A)(ii)); Count IV (carjacking resulting in serious
bodily injury, in violation of 18 U.S.C. § 2119(3));
Count V (use of a firearm during the commission of a violent
crime, in violation of 18 § 924(c)(1)(C)(i)), and Count
X (being a felon in possession of a firearm, in violation of
18 U.S.C. 922(g)(1)). He was sentenced to 262 months
imprisonment, on Counts I, II, IV & X, to be served
concurrently, 84 months (seven years) on Count III, to run
consecutive to the sentence on Counts I, II, IV & X; and
300 months (twenty-five years) on Count V, to run consecutive
to the sentence imposed on Count III. He appealed his
conviction and sentence, both were affirmed. United
States v. Allee, 282 F.3d 997 (8th Cr. 2001).
The present motion is Allee's first motion under 28
U.S.C. § 2255.
motion, Allee challenges his sentences for the crimes charged
in Count III and Count V, contending that the sentences
contravene the Supreme Court's decision in Sessions
v. Dimaya, 138 S.Ct. 1204 (2018). Allee argues that his
convictions for use of firearms in connection with
“crimes of violence” are invalid because the term
“crime of violence” as used in § 924(c)(1)
and § 924(e), is too vague to comport with his due
process rights in light of Dimaya. He contends that
Dimaya “applies with equal force to §
924(c)(3)(B), the statute that formed the predicate offense
used to support his convictions and sentences, casting
retrospective doubt on the constitutional validity of those
convictions and sentences.” Filing No. 348 at 4. He
argues he has a “Fifth Amendment right not be adjudged
guilty or to have his sentences dictated by the
unconstitutionally vague of § 924(c)(3)(B)”
record shows that Allee's seven-year sentence on Count
III was based on finding that armed robbery qualifies as a
crime of violence and (2) Allee brandished firearms during
the bank robbery. Filing No. 227, PSR (Sealed) at 14. The
twenty-five-year sentence on Count V was based on the
conviction for a second offense of using a firearm during the
commission of a violent crime-carjacking resulting in serious
bodily injury. Id. at 15-16.
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. Under the Rules Governing Section 2255
Proceedings for the United States District Courts
(“2255 Rules”), the court must perform an initial
review of the defendant's § 2255 motion.
See28 U.S.C. § 2255, Rule 4(b). The rule
provides that unless “it plainly appears from the face
of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
relief in the district court, ” the court must order
the United States Attorney to respond to the motion.
2255 does not require that the court hold an evidentiary
hearing if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief . . . .” 28 U.S.C. § 2255(b). No. hearing
is required where the petitioner's allegations are
affirmatively contradicted in the record. See Holmes v.
United States, 876 F.2d 1545, 1553 (11th Cir. 1989).
18 U.S.C. § 924(c), certain minimum sentences are
imposed on “any person who, during and in relation to
any crime of violence or drug trafficking crime[, ] . . .
uses or carries a firearm.” 18 U.S.C. §
924(c)(1)(A). Subsection (c)(3) defines “crime of
violence” as an offense that is a felony and:
(A) has an element the use, attempted use, or threatened use
of physical force against the person or property of another,
(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). The former is the use-of-force
clause and the latter is the residual clause.
who use a firearm during a crime of violence are subject to a
seven-year Mandatory minimum consecutive sentence if a
firearm is brandished during and in relation to the crime of
violence. 18 U.S.C. § 924(c)(1)(B)(i). Also, a minimum
consecutive sentence of twenty-five years is required for a
second conviction for using a firearm during a crime of
violence under 18 U.S.C. §§ 924(c)(1)(C)(i) and
Dimaya, 138 S.Ct. at 1210-11, the Supreme Court
found the “residual clause” of 18 U.S.C. §
16(b), as incorporated by the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(F), to be void for vagueness
and a violation of the Constitution's guarantee of due
process. The “residual clause” of 18 U.S.C.
§ 16, which mirrors the clause in § 924, defines a
“crime of violence” as “any other offense
that is a felony and 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. § 16(b). The Supreme Court
held the § 16(b) ...