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United States v. Jordan

United States District Court, D. Oregon, Portland Division

June 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL BAIRD JORDAN, Defendant.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon, Suzanne B. Miles ASSISTANT UNITED STATES ATTORNEY, Attorneys for Plaintiff

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

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         In this 28 U.S.C. § 2255 motion, Defendant Michael Baird Johnson challenges his conviction for using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c) and seeks resentencing as to his remaining convictions. I deny the motion.

         BACKGROUND

         On July 31, 2007, a jury found Defendant guilty of three charges: (1) Count 1: armed bank robbery in violation of 18 U.S.C. § 2113; (2) Count 2: using and carrying a firearm during and in relation to the crime of armed bank robbery in violation of 18 U.S.C. § 924(c)(1); and (3) Count 3: felon in possession of a firearm in violation of 18 U.S.C. § 922(g). July 31, 2007 Jury Verdict, ECF 78. Defendant received consecutive life sentences on Courts 1 and 2. Judgment, ECF 87. He also received a life sentence on Count 3, to be served concurrently to the life sentence imposed on Count 1. Id. The life sentences on Counts 1 and 2 were imposed pursuant to 18 U.S.C. § 3559(c)(1)(A)(ii). Statement of Reasons, ECF 88. The life sentence on Count 3 was imposed under § 924(e).

         In a Supplemental Statement of Reasons, Judge Brown found that in 1966 and again in 1980, Defendant had been previously convicted of armed bank robbery and unarmed bank robbery in violation of 18 U.S.C. § 2113. Supp'l Statement of Reasons 3-4, ECF 89. She also found that he had been convicted of fourteen different felonies in California in 1987. Id. As a result, Judge Brown determined that these prior convictions qualified as violent felonies under 18 U.S.C. § 3559(c). Id. at 6-7. Accordingly, mandatory life sentences were required for Counts 1 and 2. Id. Additionally, Judge Brown explained, § 924(c)(1)(D)(ii) required that these life sentences be consecutive, not concurrent. Id. Finally, on Count 3, § 922(g)(1) triggered a mandatory minimum of fifteen years under § 924(e) because, Judge Brown found, Defendant "easily satisfie[d]" the criteria of having three violent felonies that were committed on occasions different from one another. Id. at 7-8. She then imposed the concurrent life sentence on Count 3.

         Defendant's direct appeal was denied. United States v. Jordan, 303 Fed.Appx. 439 (9th Cir. 2008). Defendant then filed a 28 U.S.C. § 2255 motion which was denied on March 11, 2011. ECF 134. In May 2017, after receiving authorization from the Ninth Circuit to file a second or successive 28 U.S.C. § 2255 motion based on Johnson v. United States, 135 S.Ct. 2551 (2015), Defendant filed the instant motion. ECF 149; see also ECF 149-1 (Ninth Cir. Order). Counsel was promptly appointed and after some delay, the motion was fully briefed in May 2019.

         STANDARDS

         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.

         DISCUSSION

         Defendant argues that his conviction under § 924(c) 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). For the same reason, and based on his contention that none of the 1987 California state convictions are violent felonies, he further argues that he should be resentenced on the other two counts.

         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[.]" 18 U.S.C. § 924(c)(1)(A). Defendant's Count 2 conviction was based ...


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