United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
Raishat McGill and Elijah Shelton present similar arguments
in separate 28 U.S.C. § 2255 motions. McGill and Shelton
were convicted, along with co-defendant Andre Bryant, of
brandishing a firearm during a Wichita, Kansas bank robbery.
In exchange for their guilty pleas, the government dismissed
Count 1 of the Indictment, charging bank robbery in violation
of 18 U.S.C. § 2113(a). Defendants were convicted of
Count 2 of the Indictment, which charged the defendants had
used, carried and brandished a firearm during the robbery in
violation of 18 U.S.C. § 924(c)(1)(A).
argues that robbery is not a “crime of violence”
in light of Sessions v. Dimaya, 138 S.Ct. 1204
(2018). It is correct that the “residual clause”
of 18 U.S.C. § 924(c)(3)(B) has been found to be
unconstitutionally vague in the wake of Dimaya.
See United States v. Salas, 889 F.3d 681, 686 (10th
Cir. 2018). However, bank robbery squarely falls within the
separate “elements clause” of 18 U.S.C. §
924(c)(3)(A) and U.S.S.G. § 4B1.2(a)(1). See United
States v. Deiter, 890 F.3d 1203, 1213-14 (10th Cir.
2018) (Tenth Circuit decisions determining that bank robbery
is a crime of violence “ align with every circuit to
have addressed the issue”); United States v.
Smith, 730 Fed.Appx. 710 (10th Cir. 2018) (bank robbery
falls within the elements clause, which “is identical
to that contained in the Guidelines”); United
States v. McCranie, 889 F.3d 677, 681 (10th Cir. 2018).
supplemental pleading (Dkt. 106), McGill also points to the
recent Supreme Court case of United States v. Davis,
139 S.Ct. 2319 (2019). But Davis only dealt with the
residual clause under § 924(c)(3)(B); it does not affect
the validity of a conviction under the elements clause of
§ 924(c)(3)(A). See Morgan v. United States,
2019 WL 3293846, at *4 (E.D. Tenn. July 22, 2019)
(“Petitioner's criminal conduct qualified him for
enhanced sentencing on his § 924(c) conviction …
based on the ‘elements clause'” of the
statute); Jones v. Warden, FMC Lexington, No.
5:18-CV-465-CHB, 2019 WL 3046101, at *4 (E.D. Ky. July 11,
2019) (“because the Court finds that Jones' Hobbs
Act conviction qualifies as a ‘crime of violence'
under the ‘use-of-force' clause of §
924(c)(3)(A), Davis does not apply to him”).
McGill and his co-defendants were charged with robbery of the
Carson Bank of Wichita, Kansas, an FDIC insured financial
institution, by force, violence and intimidation. (Dkt. 1, at
1). Two persons entered the bank, one of whom brandished a
firearm. (Dkt. 63, at 2). Using a GPS tracking device located
in the $22, 159 stolen from the bank, investigators located a
vehicle containing a handgun, walkie talkie, and clothing
similar to that used in the robbery. The defendants were
found hiding nearby. In between the vehicle and the
defendants, police found a black bag containing the stolen
currency and another handgun. In his Plea Agreement, McGill
stated that he did not enter the bank but acted as the get
away driver. But he specifically agreed that he committed
bank robbery, and that during the course of the robbery-in
person or as an aider and abettor- he brandished a firearm.
(Id.) Given the defendant's active participation
in the crime of bank robbery, he was properly convicted of
the firearms charge under § 924(c).
next argues that he entered a plea to using or carrying a
firearm, but not to the brandishing of one during the
robbery. Paragraph 1 of the Plea Agreement, it is true, does
not contain the word “brandish.” But the
Indictment specifically alleges that the defendants
“knowingly used, carried and brandished a
firearm” during the robbery. (Dkt. 31, at 2). And in
Paragraph 2 of the Plea Agreement, McGill “admits, in
principal or as an aider and abettor, to brandishing
a firearm during the robbery.” (Dkt. 63, at 2)
(emphasis added). The Plea Agreement and the Indictment fully
informed the defendant of the nature of the charge against
him, as did the Presentence Investigation Report (PSIR) (to
which McGill filed no objection), which calculated his
sentence on the basis of brandishing the firearm. (Dkt. 71,
¶ 37). Given this background, no real ambiguity exists
in the plea, and the defendant was properly convicted of the
presents two arguments. First, like McGill, he argues that
his § 924(c) conviction cannot be sustained because the
underlying robbery is not a “crime of violence.”
Second, McGill argues that, because the first paragraph of
the Plea Agreement did not expressly state that the firearm
had been brandished during the robbery, the Agreement is so
vague and ambiguous that his conviction should be reversed.
court finds that these arguments are foreclosed for the
reasons previously set forth. Shelton was charged with, and
pled guilty to, aiding and abetting the crime of bank
robbery, which is a crime of violence under 18 U.S.C. §
924(c)(3)(A). Further, in the course of the allegedly
ambiguous Plea Agreement, Shelton specifically “admits,
in principal or as an aider and abettor, to brandishing a
firearm during the robbery of the Carson Bank in Wichita,
KS.” (Dkt. 66, at 2). As with defendant McGill,
Shelton's PSIR repeatedly states that the robbers had
brandished a firearm during the Carson Bank robbery. (Dkt.
70, at 1 n. 1, ¶¶ 5, 14, 35, 37), and explicitly
calculated his sentence under USSG § 2K2.4 as
appropriate “because a firearm was brandished.”
Defendant Shelton reviewed the PSIR and had no objection to
it. (Id. at ¶ 22). No. meaningful ambiguity
exists. The defendant was aware of the sentence to be imposed
under the Guidelines for brandishing a weapon, and defendant
knowingly and voluntarily pled guilty to the offense of
ACCORDINGLY ORDERED this day of July, 2019, that the
Defendant's Motions to Vacate (Dkt. 95, 96) are denied.
Further, because they would in no event alter the ultimate
outcome, Defendant McGill's Motions to ...