United States District Court, D. Oregon
J. WILLIAMS United States Attorney, GREGORY R. NYHUS
Assistant United States Attorney, Attorneys for Plaintiff.
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
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.
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
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.
16, 2012, Defendant pled guilty to the charges in both
3:11-cr-00375-BR and 3:11-cr-00379-BR.
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
February 27, 2014, the Court entered Judgments in both cases.
Defendant did not appeal his convictions.
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.
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.
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.