Filed: Oct. 04, 2016
Latest Update: Oct. 04, 2016
Summary: ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS [DOC. 49]; AND (2) DENYING AS MOOT RESPONDENT'S MOTION TO STAY [DOC. 52] THOMAS J. WHELAN , District Judge . Pending before the Court is Petitioner William Gilbert's motion to vacate pursuant to 28 U.S.C. 2255. [Doc. 49.] Respondent United States of America opposes, and it moves to temporarily stay proceedings. [Doc. 52.] The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1 (d)(1). For t
Summary: ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS [DOC. 49]; AND (2) DENYING AS MOOT RESPONDENT'S MOTION TO STAY [DOC. 52] THOMAS J. WHELAN , District Judge . Pending before the Court is Petitioner William Gilbert's motion to vacate pursuant to 28 U.S.C. 2255. [Doc. 49.] Respondent United States of America opposes, and it moves to temporarily stay proceedings. [Doc. 52.] The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1 (d)(1). For th..
More
ORDER:
(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS [DOC. 49]; AND
(2) DENYING AS MOOT RESPONDENT'S MOTION TO STAY [DOC. 52]
THOMAS J. WHELAN, District Judge.
Pending before the Court is Petitioner William Gilbert's motion to vacate pursuant to 28 U.S.C. § 2255. [Doc. 49.] Respondent United States of America opposes, and it moves to temporarily stay proceedings. [Doc. 52.] The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1 (d)(1). For the reasons stated below, the Court DENIES the petition and DENIES AS MOOT Respondent's motion to stay.
I. BACKGROUND
On August 4, 2014, Mr. Gilbert pleaded guilty to two counts of bank robbery and one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). (Petition [Doc. 49] 2:25-28.) As Gilbert had multiple prior convictions for crimes of violence, one of which was a bank robbery in violation of 18 U.S.C. § 2113(a), the Court enhanced his sentence as a career offender pursuant to U.S.S.G. § 4B1.1(a). (Sentencing Hearing [Doc. 49, Exh. B] 12.)
In his motion to vacate, Gilbert now argues that the Court erred in applying this enhancement because it considered his previous bank robbery conviction a "crime of violence." (Petition [Doc. 49].) According to Mr. Gilbert, bank robbery is not a crime of violence pursuant to the definition provided in U.S.S.G. § 4B1.2(a)(1)—it could only qualify as a crime of violence pursuant to an ostensibly unconstitutional residual clause that appeared in U.S.S.G. § 4B1.2(a)(2) at the time.1 (Id.)
II. DISCUSSION
Mr. Gilbert waived the right to collaterally attack his sentence as part of his plea agreement. (See Plea Agreement [Doc. 25] 14.) He now argues that the waiver is ineffective because the Court must have illegally deemed his previous bank robbery a crime of violence per the residual clause noted above, in U.S.S.G. § 4B1.1(a)(2) (2015). (See Pet.'s Reply [Doc. 53] 4:25-5:25.) See United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016) ("A waiver of appellate rights will . . . not apply if a defendant's sentence is illegal. . . ." (internal quotation omitted)). This is incorrect. Bank robbery is a crime of violence by its elements, per U.S.S.G. § 4B1.2(a)(1), without reference to the residual clause in § 4B1.2(a)(2) (2015).
U.S.S.G. 4B1.1 provides:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the incident offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.2(a)(1) defines "crime of violence" to include "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another[.]"
Conviction for bank robbery pursuant to 18 U.S.C. § 2113(a) requires proof of either "force and violence" or "intimidation." Both force and violence and intimidation constitute "the use, attempted use, or threatened use of physical force against the person of another." United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) ("[P]ersons convicted of robbing a bank `by force and violence' or `intimidation' under 18 U.S.C. § 2113(a) have been convicted of a `crime of violence' within the meaning of Guideline Section 4B1.1."); accord United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016), cert. denied, 2016 WL 3552855 (Oct. 3, 2016); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991); United States v. Wright, 957 F.2d 520, 522 (8th Cir. 1992), cert. denied, 506 U.S. 856 (1992). The Ninth Circuit's holding in Selfa is directly on point. It finds ample support in decisions of the Fourth, Sixth, Seventh, and Eighth Circuits.
Bank robbery qualifies as a crime of violence pursuant to U.S.S.G. § 4B1.2(a)(1), without reference to the allegedly unconstitutional residual clause in U.S.S.G. § 4B1.2(a)(2) (2015). As such, Mr. Gilbert's contention that his sentence is illegal based on that allegedly unconstitutional residual clause in § 4B1.2(a)(2) (2015) is without merit. His collateral attack waiver applies. (See Plea Agreement [Doc. 25] 14.)
The petition is DENIED. The clerk is directed to close the associated civil case.
Respondent's motion to stay proceedings is DENIED AS MOOT.2
IT IS SO ORDERED.
