United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
J. CAUTHRON, United States District Judge
filed a pro se Motion pursuant to 28 U.S.C. § 2255 to
seek relief from his sentence of imprisonment. The Court
appointed counsel to assist Defendant and counsel has filed a
supplement to Defendant's Motion, as well as a Reply to
was charged in a two-count Indictment alleging the crimes of
Armed Bank Robbery. He entered a plea of guilty to both
counts. In preparation for sentencing, a Pre-Sentence Report
was prepared which concluded Defendant was a Career Offender
under USSG 4B1.1 based on two previous crimes of violence.
The resulting Guideline range was 188 to 235 months for Count
1. The statute governing Count 2 required a five-year
sentence. Defendant was sentenced to 188 months on Count 1
and 60 months on Count 2, to run consecutively.
on Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015), and United States v. Madrid, 805 F.3d
1204, 1210-11 (10th Cir. 2015), Defendant argues that his
sentence was calculated, in part, on a now-invalid basis. In
Johnson, the Supreme Court held the residual clause
of the Armed Career Criminal Act, 18 U.S.C. § 924, was
unconstitutionally vague. In Madrid, the Tenth
Circuit applied the Supreme Court's reasoning in holding
the residual clause of § 4B1.1 to likewise be
unconstitutionally vague. Defendant asserts that when
sentencing him the Court applied the Career Offender
provisions of the Sentencing Guidelines that have now been
invalidated and that he should be resentenced.
Beckles v. United States, ___ U.S. ___, 137 S.Ct.
886 (2017), the Supreme Court overruled Madrid, and
held “the advisory Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process Clause
and that § 4B1.2(a)'s residual clause is not void
for vagueness.” Id., at 895. However, because
Defendant here was sentenced at a time the Guidelines were
mandatory rather than advisory, Beckles may not be
dispositive of his § 2255 Motion. Because
Defendant's claim fails on the merits, it is unnecessary
to resolve the applicability of Beckles.
without deciding that Beckles does not foreclose
Defendant's claim for relief, the issue is whether
Defendant's prior convictions can qualify as predicate
offenses under a clause of USSG § 4B1.1 other than the
noted above, Defendant has a prior conviction for violation
of 18 U.S.C. § 2113(a) and (d) and for violation of
§ 13-902 of the Arizona statutes. Defendant argues that
neither can qualify as a predicate felony as neither has as
an element the use, attempted use, or threatened use of
physical force. However, as Plaintiff notes, the Fourth
Circuit has held to the contrary:
Bank robbery under § 2113(a), “by force and
violence, ” requires the use of physical force. Bank
robbery under § 2113(a), “by intimidation, ”
requires the threatened use of physical force. Either of
those alternatives includes an element that is “the
use, attempted use, or threatened use of physical force,
” and thus bank robbery under § 2113(a)
constitutes a crime of violence under the force clause of
United States v. McNeal, 818 F.3d 141, 153 (4th Cir.
2016), cert. Denied, ___ U.S. ___, 137 S.Ct. 164
(2016). Because Defendant was also convicted of violating
§ 2113(d), the conviction included an additional element
of force. Section 2113(d) states:
Whoever, in committing, or in attempting to commit, any
offense defined in subsections (a) and (b) of this section,
assaults any person, or puts in jeopardy the life of any
person by the use of a dangerous weapon or device, shall be
fined under this title or imprisoned not more than
twenty-five years, or both.
Tenth Circuit has recognized that violation of this paragraph
establishes the use or threatened use of violent force.
See United States v. Silva, 608 F.3d 663, 670 (10th
Cir. 2010) (“Threatening or engaging in menacing
conduct toward a victim, with a weapon capable of producing
death or great bodily harm, threatens the use of
“violent force” . . . .”). Thus,
the Court finds that Defendant's prior conviction for
violation of § 2113(a) and (d) is a predicate offense
under the elements portion of USSG § 4B1.1.
conviction under Arizona law also properly serves as a
predicate offense. Considering an appeal challenging
application of the Career Offender Guideline, the Ninth
Circuit held violation of § 13-902 was a crime of
violence. See United States v. Taylor, 529 F.3d
1232, 1237 (9th Cir. 2008). While Taylor predates
recent developments in this area, the Ninth Circuit continues
to hold violation of § 13-902 is a crime of violence
under the ACCA. See United States v. Brice, 593 F.
App'x 709, 711 (9th Cir. 2015). Accordingly, the Court
hold that Defendant's conviction for violating §
13-902 satisfies the elements clause of USSG § 4B1.1.
reasons set forth herein, even when considered on its merits,
Defendant's request for relief from application of USSG
§ 4B1.1 will be denied. Defendant's prior
convictions are adequate to trigger § 4B1.1 via
application of the elements clause and without regard to the
residual clause. Thus his § 2255 Motion will be denied
as to this ground for relief.
argues his sentence enhancement pursuant to 18 U.S.C. §
924(c)(3)(B), must be set aside as that statute suffers from
the same vagueness issues as 18 U.S.C. §
924(e)(2)(B)(ii). According to Defendant, both statutes use
similar language and therefore the Supreme Court's
reasoning should apply to both. As Plaintiff notes,
Defendant's argument fails on the merits. As discussed
above, Defendant had at least two prior convictions for
violent felonies. Thus, his sentence could be enhanced under