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United States v. Rich

United States District Court, D. Oregon

May 23, 2018

UNITED STATES OF AMERICA
v.
LARRY JAMES RICH, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge.

         Pursuant to 28 U.S.C. § 2255, defendant Larry James Rich moves to vacate or correct his 312 month sentence under 18 U.S.C. § 924(c)(1)(C). Rich argues that his underlying offense of armed bank robbery no longer qualifies as a “crime of violence” and his sentence must be vacated. Because armed bank robbery remains a crime of violence, Rich's motion is DENIED.

         DISCUSSION

         Nearly three years ago, the Supreme Court struck down as unconstitutionally vague the residual clause of the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Johnson v. United States, 135 S.Ct. 2551 (2015). The ACCA imposes a15 year mandatory minimum sentence for the crime of felon in possession of a firearm if the defendant has three prior predicate convictions that meet the definition of “violent felony.” 18 U.S.C. § 924(e)(1).

         The ACCA defines “violent felony” as follows:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

§ 924(e). The final portion of the statue (“otherwise involves conduct that presents a serious potential risk of physical injury to another”) is known as the “residual clause” and has been found unconstitutionally vague by the Johnson court. The Supreme Court later concluded Johnson was retroactive. Welch v. United States, 136 S.Ct. 1257 (2016).

         There are two federal firearm statutes that impose mandatory minimum sentences. The ACCA, the subject of the Johnson decision, focuses on a defendant's prior criminal history; specifically, convictions involving drugs and crimes of violence. 18 USC 924(c), on the other hand, attaches irrespective of criminal history when a firearm is used or possessed in the furtherance of another crime of drug trafficking or violence. Rich was sentenced under 18 U.S.C. § 924(c), not the ACCA. Rich, however, argues that because the language in § 924(c) essentially mirrors that of the ACCA, the holding of Johnson renders his own sentence unconstitutional. Similar to the ACCA, § 924(c)(3) contains certain sentence enhancements for any “crime of violence.” Like the ACCA, § 924(c)(3) contains a “force clause” and a “residual clause.” Section 924(c)(3) provides an enhancement for “a crime of violence” that:

(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.

         Rich argues that under the reasoning of Johnson, the residual clause of § 924(c)(3)(B) is unconstitutional. With the residual clause inapplicable, he next argues that because his underlying offense of armed bank robbery does not have “as an element the use, attempted use, or threated use of physical force against the person or property of another, ” his sentence under the force clause of § 924(c) is unconstitutional.

         The relevant federal bank robbery statute provides that “Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money . . . in the care, custody, control, management, or possession of, any bank . . .” shall be imprisoned up to twenty years. 18 U.S.C. § 2113(a). The statute provides a maximum 25 year sentence for one, like Rich, who robs a bank and ...


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