No. CV 16-02057-PHX-JAT (MHB) No. CR 06-00526-PHX-JAT
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
On June 24, 2016, Movant filed a Motion to Vacate, Set Aside or Correct Sentence ("2255 motion"), asserting that his conviction for armed bank robbery no longer qualifies as a crime of violence pursuant to 18 U.S.C. § 924(c)(3)(B) and U.S.S.G. § 4B1.2(a)(2), based upon the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (CVDoc. 1.) The case was ultimately stayed pending the Supreme Court's decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and Beckles v. United States, 616 Fed App'x. 415 (11th Cir. 2015). (CVDoc. 16.) On April 10, 2018, Respondent filed a Motion to Vacate Stay and Dismiss Movant's 2255 motion. (CVDoc. 19.) Movant has filed a Response in Opposition, (Doc. 20), and Respondent has filed a Reply. (CVDoc. 21.) \\\
Documents in the 2255 matter will be referred to as "CVDoc.," and documents in the underlying criminal matter will be referred to as "CRDoc."
In Movant's underlying criminal matter, Movant pleaded guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), two counts of armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d), and one count of use of a firearm during and in relation to a crime of violence - armed bank robbery, in violation of 18 U.S.C. § 924(c). (CRDocs. 43, 52.) Movant was subsequently sentenced as a career offender, the Court concluding that Movant's armed bank robbery conviction, his prior federal bank robbery and two state armed bank robbery convictions qualified as crimes of violence pursuant to U.S.S.G. § 4B1.2. Movant was sentenced to a total of 384 months' imprisonment. (CRDocs. 51, 54.)
Movant's 2255 claims are as follows: (1) the crime of armed bank robbery does not qualify as a crime of violence under the force clause of § 924(c)(3)(B), but qualifies under the residual clause, which is unconstitutionally void for vagueness under Johnson, and (2) the crime of armed robbery does not qualify as a crime of violence under the "force" or "enumerated offense clause" of § 4B1.2, but qualifies under the residual clause which is unconstitutionally void for vagueness under Johnson, and (3) because Movant's prior convictions for bank robbery and armed bank robbery (state conviction) are no longer crimes of violence, his enhanced sentence as a career offender is no longer valid. (CVDoc. 1.) Respondent asserts that a stay of the proceedings to await the Supreme Court's decision in Dimaya and Beckles is no longer necessary, as the cases have been decided, and do not form a basis for relief; and, that Movant's 2255 motion should be dismissed as there is now binding Ninth Circuit precedent that is also fatal to Movant's claims. (CVDoc. 19.)
In his 2255 motion, Movant also addressed affirmative defenses, which the Court will not review because of its decision on the merits. --------
On March 6, 2017, the Supreme Court decided Beckles v. United States, 137 S.Ct. 886 (2017), holding that the advisory Sentencing Guidelines are not subject to a void-for-vagueness challenge under the Due Process Clause, and that § 4B1.2(a)'s residual clause is therefore constitutional. 137 S. Ct. at 892. In Movant's response, he does not dispute that the Beckles decision renders his claim for relief pursuant to § 4B1.2 meritless, and this Court will therefore recommend that Movant's claim two be denied and dismissed with prejudice.
As to Movant's other claims, Respondent asserts that the Ninth Circuit has recently reaffirmed prior precedent holding that bank robbery by intimidation "requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard." See, United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) (reaffirming United States v. Selfa, 918 F.2d 749 (9th Cir. 1990)). Soon thereafter, the Ninth Circuit held that armed bank robbery is a crime of violence under 18 U.S.C. § 924(c). United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018) ("Because bank robbery 'by force and violence, or by intimidation' is a crime of violence, so too is armed bank robbery."). Respondent also asserts that, for the same reason that bank robbery and armed bank robbery are crimes of violence under Ninth Circuit precedent, Movant's enhanced sentence as a career offender is valid and should be affirmed.
Movant concedes that the cases relied upon by Respondent are presently precedential, but asserts that they "may be reviewed by the Supreme Court," and that in Watson, a petition for writ of certiorari "will be filed." (CVDoc. 20 at 2.) He also concedes that "the Court may not stay a case solely to wait for the Supreme Court to overturn binding circuit precedent," citing Yong v. INS, 208 F.3d 1116, 1119-21 & n.2 (9th Cir. 2000).
The Court granted a stay of this matter pending Supreme Court decisions in Beckles and Dimaya. Both cases have been decided and neither decision supports Movant's claims. Thus, the stay should be lifted. As Movant does not dispute that binding Supreme Court and Ninth Circuit precedent foreclose his claims, this Court will recommend that Movant's 2255 motion be denied and dismissed with prejudice.
In the alternative, Movant requests that the Court grant a certificate of appealability for the reasons set forth in United States v. Dawson, 300 F.Supp.3d 1207 (D. Or. 2018). In Dawson, the District Court found a tension between the Ninth Circuit holding in Watson that "'a defendant may not be convicted [of bank robbery] if he only negligently intimidated the victim,'  and previous Ninth Circuit opinions on the mens rea requirement for a bank robbery conviction." 300 F.Supp.3d at 1210 (internal citations omitted). Specifically, the District Court cited United States v. Foppe, and its holding that "intimidation should be guided by an objective test focusing on the accused's actions," 993 F.2d 1444, 1451 (9th Cir. 1993), and an Eighth Circuit case citing Foppe for the same conclusion, United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003). Following the Court's line of reasoning, conduct under an objective test - focusing on an accused's actions - "could be satisfied by only a negligent threat." Dawson, 300 F.Supp.3d at 1211. The Court further noted that in the Ninth Circuit, as in other Circuits, "a simple demand for money is sufficient to establish intimidation." Id. Both the Foppe and Yockel decisions, however, were decided long before Johnson, Watson, and Gutierrez, and do not address directly the question presented in this case, that is, whether or not the crime of bank robbery constitutes a crime of violence under the "force" clause of § 924(c).
In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court of the United States held that, in the certificate of appealability context, "[w]here a district court has rejected the constitutional claims [in the petition] on the merits," . . . "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." 529 U.S. 484.
Due to the binding Ninth Circuit precedent on Movant's claims one and three, and binding Supreme Court precedent on Movant's claim two, this Court finds that reasonable jurists would not find the Court's assessment of the constitutional claims debatable or wrong. This Court will therefore recommend that the request for a certificate of appealability be denied.
Movant's claims fail on the merits, and therefore Movant's 2255 motion should be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §2255, (CVDoc. 1), be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that the Court deny a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Movant has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 10th day of August, 2018.
Michelle H. Burns
United States Magistrate Judge