United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
case is before the court on defendant Claude White's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc. 216)
and Motion to Amend the Pending Title 28 U.S.C. § 2255
Petition Currently Before the Court (Doc. 228). In his
original motion, defendant claims that the sentence
enhancement based on use of a firearm during and in relation
to a crime of violence, under 18 U.S.C. § 924(c), is
unconstitutional in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). In his motion to amend,
defendant seeks to add a double jeopardy claim and argues
that he was sentenced twice based on same conduct. Defendant
further alleges ineffective assistance of counsel based upon
the alleged error in calculating his total offense level. For
the reasons set forth below, this court denies
September 17, 2010, defendant pleaded guilty to attempted
bank robbery and using and carrying a firearm in furtherance
of a crime of violence. The court sentenced defendant to 144
months on the attempted robbery count, plus a mandatory
minimum sentence of 60 months for the 18 U.S.C. § 924(c)
firearm count, which resulted in a total sentence of 204
directly appealed, which was later dismissed on September 12,
2011. Defendant filed his § 2255 motion on June 10,
2016, and motion to amend on October 31, 2016.
Defendant's 28 U.S.C. § 2255 motion
seeks collateral review more than four years after his appeal
was dismissed. He relies on a right that the United States
Supreme Court recognized in Johnson, which was made
retroactively applicable to cases on collateral review in
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
See 28 U.S.C. § 2255(f)(3).
held that the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
is unconstitutionally vague. See Johnson 135 S.Ct.
at 2563. Defendant claims that attempted bank robbery can no
longer constitute a predicate crime of violence and
consequently, cannot serve to support a conviction under
§ 924(c). Defendant argues that the residual clause in
§ 924(c) has similar language as the offending residual
clause of the ACCA.
is ineligible for relief for two reasons. First,
Johnson did not clearly invalidate §
924(c)'s residual clause, and defendant's claim is
untimely. Second, armed bank robbery or attempted bank
robbery are crimes of violence under § 924(c)'s
force or element clause, not the residual clause.
See 18 U.S.C. § 924(c)(3)(A) (this subsection,
commonly known as the “force clause, ” defines a
“crime of violence” as “an offense that is
a felony and . . . has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another . . . ”).
courts addressing this issue have reached the same
conclusion. See, e.g., United States v.
McNeal, 818 F.3d 141, 157 (4th Cir. 2016) (“we are
satisfied that bank robbery under 18 U.S.C. § 2113(a) is
a ‘crime of violence' within the meaning of the
force clause of 18 U.S.C. § 924(c)(3), because it
‘has as an element the use, attempted use, or
threatened use of physical force'-specifically, the
taking or attempted taking of property ‘by force and
violence, or by intimidation.'”); United
States v. Willis, No. 1:16-CV-815, 2016 WL
5219589, at *3-4 (E.D. Va. Sept. 20, 2016); Lloyd v.
United States, No. CIV 16-0513 JB/WPL, 2016 WL 5387665,
at *3 (D. N.M. Aug. 31, 2016).
Tenth Circuit recently recognized that a federal bank robbery
conviction qualifies as a predicate offense under the
elements clause of § 4B1.2(1)(i) because it contains, as
an element, the use or threatened use of force. United
States v. McGuire, No. 16-3282, 2017 WL 429251, at *2
n.2 (10th Cir. Feb. 1, 2017) (noting that § 4B1.2(1)(ii)
of the guidelines, which defines “crime of violence,
” contains language identical to the residual clause in
18 U.S.C. § 924(e)(2)(B)(ii)). The Tenth Circuit stated
that § 2113(a) is divisible and applied the modified
categorical approach to determine which elements of the bank
robbery statute formed the basis of the defendant's
conviction. It acknowledged that “[a]lthough §
2113(a) includes a taking ‘by intimidation, '
courts have stated that ‘intimidation' involves the
threat of physical force.” Id. (citing
United States v. McBride, 826 F.3d 293, 295-96 (6th
Cir. 2016); Lloyd, 2016 WL 5387665 at *5). The Tenth
Circuit also stated that other courts have determined federal
bank robbery qualifies as a predicate offense under the
guidelines' elements clause. Id. As a result,
the defendant was not sentenced under the residual clause of
§ 4B1.2(1)(ii), which was held unconstitutional in
United States v. Madrid, 805 F.3d 1204, 1211 (10th
Cir. 2015). McGuire, 2017 WL 429251 at *2.
defendant's sentence for use of a firearm during the
attempted bank robbery was imposed under the force clause of
§ 924(c)(3)(A)-as opposed to the residual
clause-Johnson and/or its line of reasoning is
inapplicable. Defendant's § 2255 motion to vacate,
set aside, or correct his sentence is denied.
Motion to Amend
seeks to amend his § 2255 motion to add two claims (1)
his sentence violates the double jeopardy clause of the Fifth
Amendment and (2) ineffective assistance of counsel based on
the alleged error in calculating his total offense level.
(Doc. 228, at 1-2.) Defendant claims that he was penalized
twice because he received two sentence enhancements for the
same conduct-a 5-level enhancement because firearms were
possessed during the robbery, U.S.S.G. §2B3.1(b)(2)(C),