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
seeking relief from his sentence of imprisonment. The Court
appointed counsel to assist Defendant and counsel filed a
supplement to Defendant's Motion. Plaintiff has not
responded to Defendant's Motion but instead has filed a
Motion to Enforce the terms of the plea agreement, which
included a waiver of collateral attack. Defendant has
responded to that Motion.
to sentencing, the Court determined Defendant was a career
offender as defined by USSG §§ 4B1.1 and 4B1.2.
Defendant pled guilty to armed bank robbery in violation of
18 U.S.C. § 2113(a) and (d). As predicate offenses,
Defendant had two prior felony drug convictions which
qualified under the controlled substance offenses of USSG
§ 4B1.2(b). Relying on those two prior convictions and
the guilty plea to violation of § 2113(a) and (d), the
Court sentenced Defendant as a career offender under the
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 determined 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 that reasoning in holding the residual clause
of § 4B1.1 to be unconstitutionally vague.
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. Defendant argues that
because he was sentenced at a time when the Guidelines were
mandatory rather than advisory, Beckles is not
dispositive of his § 2255 Motion. The Court finds
Defendant's claims fail on the merits and therefore
resolution of the applicability of Beckles is
the Court must determine the impact, if any, of
Defendant's waiver of collateral attack. In its Motion,
Plaintiff argues that Defendant, as part of his Plea
Agreement, agreed to a waiver of collateral attack and that
waiver is applicable to the claims presented herein.
Plaintiff acknowledges that the waiver included an exception
to “challenges based on changes in the law reflected in
Tenth Circuit or Supreme Court cases decided after the date
of this agreement that are held by the Tenth Circuit or
Supreme Court to have retroactive effect.” (Dkt. No.
30, Att. 1, Plea Agree., p. 9.) Plaintiff argues this
exception does not apply because neither of the requisite
Courts have made the basis for Defendant's challenge
retroactive. In his response, Defendant argues, relying
primarily on case law applying Johnson and the Armed
Career Criminal Act rather than the Sentencing Guidelines,
that the changes in the law apply retroactively. However,
Defendant does not direct the Court to any case holding that
any determination on the validity of the Sentencing
Guidelines enhancement is to be given retroactive effect. In
light of the Supreme Court's recent decision in
Beckles, it is unclear whether any of the cases
relied upon by Defendant would remain applicable to his
claims and would give retroactive effect to a challenge to
the Sentencing Guideline. However, because Defendant's
claims fail on the merits, it is unnecessary to resolve this
argues that his conviction for armed bank robbery is not a
crime of violence as defined by § 4B1.2(a). Thus, he
asserts, it cannot serve as a predicate offense for enhancing
his sentence.[*] The Fourth Circuit has held that:
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).
The Tenth Circuit reached the same conclusion in United
States v. McGuire, No. 16-3282, 2017 WL 429251, at *2
(10th Cir. Feb. 1, 2017). Thus, USSG § 4B1.2(a)(1)
applies to Defendant's conviction without reliance on the
Defendant was also convicted of violating 2113(d), the
conviction included an additional element of force. Section
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' . . . .”).
Defendant's violation of this additional paragraph
bolsters the validity of application of the sentencing
enhancement under the elements portion of § 4B1.2(a).
argues that because the gun he used was a toy gun his
conviction under this statute cannot constitute a crime of
violence. The Court is precluded from examining the facts
underlying Defendant's conviction in this matter.
Shepard v. United States, 544 U.S. 13, 26 (2005).
Rather, the Court's inquiry is limited to “the
terms of the charging document, the terms of a plea agreement
or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this
information.” Id. Even were the Court to give
credence to Defendant's argument, that fact would only
affect his conviction for violating § 2113(d). Because
his conviction for violating § 2113(a) is a crime of
violence under § 4B1.2(a), Defendant would still be
subject to the career offender enhancement.
reasons set forth herein, Defendant's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (Dkt. No. 56) is DENIED.
Defendant's pro se Motion (Dkt. No. 102) is stricken as
moot. The United States' Motion to Enforce the Collateral
Attack Waiver or, ...