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United States v. Moore

United States District Court, D. Oregon

January 19, 2018


          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Ryan W. Bounds ASSISTANT UNITED STATES ATTORNEY Attorney for Plaintiff

          Stephen R. Sady CHIEF DEPUTY FEDERAL DEFENDER Elizabeth G. Daily ASSISTANT FEDERAL PUBLIC DEFENDER Attorney for Defendant

          OPINION & ORDER


         Defendant Michael Travis Moore moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that the portion of his sentence imposed under 18 U.S.C. § 924(c)(1)(A)(ii) should be vacated as the underlying offense of armed bank robbery is not a crime of violence under § 924(c)(3). I deny the motion because first, a December 12, 2017 Ninth Circuit case disposes of part of Defendant's argument and second, I agree with the Government that the Supreme Court cases on which Defendant relies are not clearly irreconcilable with Ninth Circuit precedent holding that federal armed bank robbery is a crime of violence under § 924(c)(3)'s force clause. Because of my determination, I do not address the other issues raised by the parties including waiver, timeliness, and the validity of § 924(c)(3)'s residual clause.


         On October 22, 2010, Defendant entered a guilty plea to a superseding information charging him with armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) & (d), and with brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Supsed. Info., ECF 13; Plea Hrg. Min. Ord., ECF 15. Defendant entered his guilty plea pursuant to a Plea Agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), in which the parties agreed that the appropriate sentence was 141 months of imprisonment. Plea Agrmt. 3, ¶ 5, ECF 16. On December 17, 2010, Judge King imposed a 57-month prison term for the armed bank robbery conviction on Count 1, and a mandatory 84-month prison term for the § 924(c)(1)(A)(ii) conviction on Count 2.[1] Jdgmt, ECF 24. Defendant did not appeal his conviction or his sentence. However, on June 24, 2016, Defendant filed the instant motion to vacate his §924(c)(1)(a)(ii) conviction and sentence.


          Under § 2255, a federal prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence on the basis that the sentence violates the Constitution or the laws of the United States. 28 U.S.C. § 2255(a); United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citing Davis v. United States, 417 U.S. 333 (1974)). The petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254."). A hearing is unnecessary in cases "where the files and records . . . conclusively show that the prisoner is entitled to no relief[.]" 28 U.S.C. § 2255(b). Here, because there are no facts in dispute and the questions presented raise solely legal issues, no hearing is required.


         Defendant argues that his conviction and sentence under § 924(c)(1)(A)(ii) must be vacated because his armed bank robbery conviction under 18 U.S.C. § 2113(a) & (d) is not a "crime of violence" as that phrase is defined in § 924(c)(3). Section 924(c)(1)(A) provides a mandatory additional sentence for "any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, " for a term as specified in subsections (i), (ii), or (iii). 18 U.S.C. § 924(c)(1)(A).

For purposes of § 924(c)(1)(A),
the term "crime of violence" means an offense that is a felony and-
(A) has as 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). Paragraph A is referred to as the "force clause" and paragraph B is referred to as the "residual clause." E.g., United States v. Bundy, No. 3:16-cr-00051-BR, 2016 WL 3361490, at *1 (D. Or. June 10, 2016).

         In Johnson v. United States, 135 S.Ct. 2551, 2557 (2015) ("Johnson II"), the Supreme Court found the residual clause of a similar definition for "violent felony" in the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), unconstitutionally void for vagueness. Defendant argues that Johnson II impliedly invalidates the residual clause of § 924(c)(3)(B) at issue here because the § 924(c)(3)(B) clause has language similar to, and suffers the same fatal flaws as, the § 924(e) clause at issue in Johnson II. While there is no controlling Ninth Circuit authority on the issue, Defendant points to a 2015 Ninth Circuit case holding that Johnson II invalidated the residual clause in 18 U.S.C. § 16(b) which is identical to the § 924(c)(3)(B) residual clause. Dimaya v. Lynch, 803 F.3d 1110, 1118-20 (9th Cir. 2015), cert. granted, 137 S.Ct. 31 (2016).[2]Defendant cites to other district court cases, including Judge Brown's decision in United States v. Bundy, which have expressly concluded that § 924(c)(3)(B)'s residual clause is unconstitutionally vague in light of Johnson II and Dimaya. United States v. Baires-Reyes, 191 F.Supp.3d 1046, 1053 (N.D. Cal. 2016); United States v. Bell, 158 F.Supp.3d 906, 924 (N.D. Cal. 2016); United States v. Bundy, 2016 WL 3361490, at *4-6.

         Then, because an unenforceable residual clause is not enough to invalidate Defendant's § 924(c)(1)(A)(ii) conviction, Defendant turns his attention to § 924(c)(3)'s force clause. Defendant acknowledges that Ninth Circuit precedent expressly holds that armed bank robbery under § 2113(a) & (d) is a crime of violence under the force clause of § 924(c)(3)(A). United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000); see also United States v. Selfa, 918 F.2d 749, 751-52 (9th Cir. 1990) (bank robbery is crime of violence under U.S.S.G. § 4B1.1). Defendant argues, however, that this Court is not bound by Wright because the law articulated in three subsequent Supreme Court decisions is clearly irreconcilable with Wright's holding, effectively overruling Wright. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (district court or three-judge appellate court panel not required to follow circuit precedent if the "relevant court of last resort [has] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable."). With that, and because, Defendant contends, those Supreme Court cases establish that an armed bank robbery conviction is not a crime of violence under the force clause of § 924(c)(3)(A), Defendant seeks to vacate his § 924(c) conviction and sentence.[3]

         In support of his position that "[t]he opinion in Wright is no longer good law following three intervening Supreme Court opinions[, ]" Def.'s Mem. 14, ECF 37, Defendant relies on Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"), Leocal v. Ashcroft, 543 U.S. 1 (2004), and Elonis v. United States, 135 S.Ct. 2001 (2015). He contends that these cases establish that the statutory elements of federal armed bank robbery fail to include ...

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