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United States v. Moore

United States District Court, D. Oregon

December 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM FLOYD MOORE, Defendant.

          BILLY J. WILLIAMS United States Attorney, GREGORY R. NYHUS Assistant United States Attorney, Attorneys for Plaintiff.

          LISA C. HAY Federal Public Defender, STEPHEN R. SADY Chief Deputy Federal Public Defender, ELIZABETH G. DAILY Assistant Federal Public Defender Attorneys for Defendant.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         This matter comes before the Court on Defendant William Floyd Moore's Motion (#66) to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed in Case No. 3:11-cr-00375-BR and Defendant's Motion (#59) to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed in Case No. 3:11-cr-00379-BR. For the reasons that follow, the Court DENIES Defendant's Motions and DECLINES to issue a certificate of appealability.

         BACKGROUND

         On September 20, 2011, Defendant was charged in an Indictment in Case No. 3:11-cr-00375-BR with one count of Bank Robbery in violation of 18 U.S.C. § 2113(a). On September 20, 2011, Defendant was charged in an Indictment in Case No. 3:11-cr-00379-BR with one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). Both Indictments related to Plaintiff's use of a firearm during his September 8, 2011, robbery of the U.S. Bank at 10830 S.E. Oak Street, Milwaukie, Oregon.

         On July 16, 2012, Defendant pled guilty to the charges in both 3:11-cr-00375-BR and 3:11-cr-00379-BR.

         On December 4, 2013, Senior District Court Judge Ancer Haggerty held a sentencing hearing in both 3:11-cr-00375-BR and 3:11-cr-00379-BR; adopted the sentencing calculations in the Presentence Report; and sentenced Defendant as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), to 151 months imprisonment in 3:11-cr-00375-BR and 180 months imprisonment in 3:11-cr-00379-BR to be served concurrently and five years of supervised release.

         On February 27, 2014, the Court entered Judgments in both cases. Defendant did not appeal his convictions.

         On June 20, 2016, Defendant filed identical Motions to Vacate or Correct Sentence under 28 U.S.C. § 2255 in 3:11-cr-00375-BR and 3:11-cr-00379-BR in which he asserts pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), that he “should no longer be designated an armed career criminal because he does not have at least three prior convictions for a . . . violent felony.” Defendant asserts his sentence was imposed in violation of the Constitution or laws of the United States and that his sentence exceeds the statutory maximum sentence.

         On May 30, 2017, Defendant filed Memoranda in Support of his Motions to Vacate. The Court took Defendant's Motions to Vacate under advisement on September 29, 2017.

         DISCUSSION

         Defendant moves to modify or to set aside his sentences on the ground that his three prior convictions for unarmed bank robbery do not qualify as crimes of violence under the ACCA because they do not involve the requisite force or specific intent.

         I. The ...


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