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United States v. Allee

United States District Court, D. Nebraska

March 28, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
JAMES G. ALLEE, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon, Senior United States District Judge.

         This 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).

         On 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)).[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.

         In his 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)” Id.

         The 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.

         II. LAW

         A 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. Id.

         Section 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).

         Under 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, 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). The former is the use-of-force clause and the latter is the residual clause.

         Defendants 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 924(c)(1)(D)(ii).

         In 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) ...


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