JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the court on Brandon E. Prayer's (hereinafter, "defendant") amended motion to vacate, set aside, or correct his sentence under § 2255.
Prayer was charged in a five count superseding indictment with three counts of bank robbery in violation of 18 U.S.C. § 2113 and two counts of carrying and brandishing a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(C). The crimes of violence were two of the bank robberies. On August 3, 2007, Prayer entered pleas of guilty to all three bank robbery charges and to one count of brandishing a firearm, in violation of 18 U.S.C. § 924(c). Filing No. 48. He was sentenced to three concurrent terms of 110 months' imprisonment for the bank robberies and to an additional consecutive 84 months for the weapons charge.
Prayer seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015). In that case, the Supreme Court held that "imposing an increased sentence under the residual clause under the Armed Career Criminal Act [of 1984 (("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii),] violates the Constitution's guarantee of due process." Id. at 2563. The portion of the ACCA that the Court found unconstitutionally vague defined "violent felony" to include an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 2555-56 (emphasis omitted) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Consequently, imposing an increased sentence pursuant to the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), violates due process under the Fifth Amendment.
The Supreme Court later found that, to determine whether a prior conviction is for a generic form of burglary, arson, or extortion, as predicate violent felony offenses under the ACCA, courts must apply a categorical approach, which focuses solely on whether the elements of the crime of conviction sufficiently match the elements of the generic offense, i.e., the elements for the crime of conviction are the same as, or narrower than, those of the generic offense, while ignoring the particular facts of the case. Mathis v. United States, 136 S.Ct. 2243, 2248 (June 23, 2016). A crime that criminalizes a broader swath of conduct than the generic offense of burglary cannot qualify as an ACCA predicate. Id. at 2251.
The defendant argues, in light of Johnson and Mathis, that bank robbery does not categorically require the element of "use, attempted use, or threatened use of physical force against the person or property of another" because the statute also criminalizes bank robbery by intimidation and bank robbery by means of extortion. He contends that his conviction for carrying or brandishing a firearm during and in relation to a crime of violence is invalid because bank robbery under 18 U.S.C. § 2113(a) is not a crime of violence and cannot subject him to conviction under 18 U.S.C. §924(c). The government argues that the defendant's positon is foreclosed by Eighth Circuit precedent, citing United States v. Prickett, 839 F.3d 697, 698 (8th Cir. 2016).
Under 28 U.S.C. § 2255, a court may grant relief to a federal prisoner who moves to vacate, set aside or correct his sentence on any of the following grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Section 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries that are outside the ambit of a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987).
The statute at issue provides specified mandatory minimum consecutive sentences for persons convicted of a "crime of violence" who possess, use, carry or brandish a firearm during and in relation to or in furtherance of that violent crime. 18 U.S.C. § 924(c)(1)(A). For the purposes of § 924(c), a "crime of violence" is defined as an offense that is a felony and
18 U.S.C. § 924(c)(3)(A)&(B).
Under Eighth Circuit precedent, the residual clause, § 924(c)(3)(B), is not void for vagueness under Johnson. Prickett, 839 F.3d at 699 (joining the Second and Sixth Circuits in upholding § 924(c)(3)(B) against a vagueness challenge because several factors distinguish the ACCA residual clause from § 924(c)(3)(B)).
Similarly, the concerns that animated Mathis are not at issue here. The reasons for employing the categorical approach as the "only plausible interpretation" of the law do not exist outside the context of sentencing under recidivist statutes or enhancements. See Johnson, 135 S. Ct. at 2562. Section 924(c) is not a recidivist statute, but is a separate, substantive crime.
In contrast, in the context of ACCA sentencing enhancements, the categorical approach is necessary to avoid the difficult or impossible situation where a sentencing court would be required to re-try the factual basis for a prior conviction. This case does not involve a prior conviction, it involves a conviction adjudicated by this court—the companion crime to the defendant's firearm offense. The court does not make an abstract retrospective finding, but has the benefit of viewing the facts and admissions as presented in this case.
Moreover, the underlying crime of bank robbery qualifies as a crime of violence under the "elements" or "force" clause of the statute. 18 U.S.C. § 924(c)(3)(A). In Johnson, the Supreme Court did not call into question the application of the elements clause and the enumerated crimes of the ACCA's definition of a violent felony. Johnson, 135 S. Ct. at 2563. In the Eighth Circuit, bank robbery in violation of 18 U.S.C. § 2113(a)
The defendant was charged with, admitted to, and was convicted of robbery by force, violence and intimidation. The fact that the statute could arguably be violated by conduct encompassing extortion has no applicability to the defendant's case because he was not charged with bank robbery by extortion.
The defendant must make a substantial showing of the denial of a constitutional right in order to be granted a certificate of appealability in this case. See Miller-El v. Cockrell, 537 U.S. 322 (2003). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Moreover, "`[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The court finds the defendant's motion does not present questions of substance for appellate review and, therefore, does not make the requisite showing to satisfy § 2253(c). See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Accordingly, no certificate of appealability pursuant to 28 U.S.C. § 2253(c) will issue. Should the defendant wish to seek further review of his petition, he may request a certificate of appealability from a judge of the United States Court of Appeals for the Eighth Circuit. See Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
IT IS ORDERED:
18 U.S.C.A. § 2113(a) (2015).
