Opinion
3:11-cr-00375-BR 3:16-cv-01131-BR 3:11-cr-00379-BR 3:16-cv-01132-BR
12-07-2017
UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM FLOYD MOORE, Defendant.
BILLY J. WILLIAMS United States Attorney GREGORY R. NYHUS Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204 (503) 727-1015 Attorneys for Plaintiff LISA C. HAY Federal Public Defender STEPHEN R. SADY Chief Deputy Federal Public Defender ELIZABETH G. DAILY Assistant Federal Public Defender 101 S.W. Main Street Suite 1700 Portland, OR 97201 (503) 326-2123 Attorneys for Defendant
OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
GREGORY R. NYHUS
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
(503) 727-1015
Attorneys for Plaintiff LISA C. HAY
Federal Public Defender
STEPHEN R. SADY
Chief Deputy Federal Public Defender
ELIZABETH G. DAILY
Assistant Federal Public Defender
101 S.W. Main Street
Suite 1700
Portland, OR 97201
(503) 326-2123
Attorneys for Defendant BROWN, Judge.
This matter comes before the Court on Defendant William Floyd Moore's Motion (#66) to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed in Case No. 3:11-cr-00375-BR and Defendant's Motion (#59) to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed in Case No. 3:11-cr-00379-BR. For the reasons that follow, the Court DENIES Defendant's Motions and DECLINES to issue a certificate of appealability.
BACKGROUND
On September 20, 2011, Defendant was charged in an Indictment in Case No. 3:11-cr-00375-BR with one count of Bank Robbery in violation of 18 U.S.C. § 2113(a). On September 20, 2011, Defendant was charged in an Indictment in Case No. 3:11-cr-00379-BR with one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). Both Indictments related to Plaintiff's use of a firearm during his September 8, 2011, robbery of the U.S. Bank at 10830 S.E. Oak Street, Milwaukie, Oregon.
On July 16, 2012, Defendant pled guilty to the charges in both 3:11-cr-00375-BR and 3:11-cr-00379-BR.
On December 4, 2013, Senior District Court Judge Ancer Haggerty held a sentencing hearing in both 3:11-cr-00375-BR and 3:11-cr-00379-BR; adopted the sentencing calculations in the Presentence Report; and sentenced Defendant as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), to 151 months imprisonment in 3:11-cr-00375-BR and 180 months imprisonment in 3:11-cr-00379-BR to be served concurrently and five years of supervised release.
On February 27, 2014, the Court entered Judgments in both cases. Defendant did not appeal his convictions.
On June 20, 2016, Defendant filed identical Motions to Vacate or Correct Sentence under 28 U.S.C. § 2255 in 3:11-cr-00375-BR and 3:11-cr-00379-BR in which he asserts pursuant to the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), that he "should no longer be designated an armed career criminal because he does not have at least three prior convictions for a . . . violent felony." Defendant asserts his sentence was imposed in violation of the Constitution or laws of the United States and that his sentence exceeds the statutory maximum sentence.
On May 30, 2017, Defendant filed Memoranda in Support of his Motions to Vacate. The Court took Defendant's Motions to Vacate under advisement on September 29, 2017.
DISCUSSION
Defendant moves to modify or to set aside his sentences on the ground that his three prior convictions for unarmed bank robbery do not qualify as crimes of violence under the ACCA because they do not involve the requisite force or specific intent. I. The ACCA and Johnson
The ACCA requires a defendant to be sentenced to a mandatory minimum of 15 years to life in custody if he has three prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The ACCA defines violent felony as any crime punishable by imprisonment for a term exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or18 U.S.C. § 924(e)(2)(B). Courts refer to § 924(e)(2)(B)(I) as the elements clause, the first part of the disjunctive statement in § 924(e)(2)(B)(ii) as the enumerated offenses clause, and the second part of the disjunctive statement in § 924(e)(2)(B)(ii)(starting with "or otherwise") as the residual clause. See, e.g., Johnson, 135 S. Ct. at 2563; United States v. Lee, 821 F.3d 1124, 1126 (9 Cir. 2016).
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
In Johnson the Supreme Court held "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process" on the basis that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S. Ct. at 2557, 2563. Subsequently in Welch v. United States the Supreme Court held its decision in Johnson announced a new substantive rule that applies retroactively to cases on collateral review. 136 S. Ct. 1257, 1268 (2016). As a result, defendants sentenced pursuant to the ACCA residual clause can collaterally attack their sentences as unconstitutional under § 2255.
II. Sentencing Pursuant to 18 U.S.C. § 924(c)(1)(A)
18 U.S.C. § 924(c)(1)(A) provides in relevant part that a person who "in relation to any crime of violence . . . uses or carries a firearm . . . shall, in addition to the punishment provided for such crime of violence . . . be sentenced to a term of imprisonment of not less than 5 years" to run consecutively with the punishment for the underlying crime of violence. 18 U.S.C. § 924(c)(3) defines a "crime of violence" as an offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.As noted, courts refer to the (A) clause of section 924(c)(3) as the "force clause" and to the (B) clause of section 924(c)(3) as the "residual clause."
III. Analysis
Defendant challenges his sentences on the ground that unarmed bank robbery in violation of 18 U.S.C. § 2113(a) is no longer a qualifying crime of violence for purposes of § 924(c)(1).
In United States v. Wright the Ninth Circuit held armed bank robbery under 18 U.S.C. § 2113(a) and (d) qualifies as a crime of violence under the "force" clause of § 924(c)(3)(A). 215 F.3d 1020, 1028 (9 Cir. 2000). The court explained § 2113(a) necessarily "has as an element the use, attempted use, or threatened use of physical force against the person or property of another and, therefore, 'a taking by force and violence, or by intimidation' is an element of armed bank robbery." Id.
In United States v. Selfa the Ninth Circuit held unarmed bank robbery in violation of § 2113(a) constitutes a crime of violence under the force clause of United States Sentencing Guideline § 4B1.2, which is identical to the force clause of § 924(c). 918 F.2d 749, 751 (9 Cir. 1990). Specifically, the court "defined 'intimidation' under § 2113(a) to mean 'willfully to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm.'" Id. (quoting United States v. Hopkins, 703 F.2d 1102, 1103 (9 Cir. 1983)). The court concluded this definition met the requirement of a "threatened use of physical force" under the identical force clause in the Sentencing Guidelines. Id.
Defendant concedes the holdings in Wright and Selfa appear to foreclose his challenge to his sentences, but he asserts those cases have been undermined by the Supreme Court's subsequent decisions in Johnson and Leocal v. Ashcroft, 543 U.S. 1 (2004), in addition to the Ninth Circuit's decision in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9 Cir. 2006). The Ninth Circuit, however, has rejected this argument in several decisions issued after Johnson. For example, in United States v. Cross the Ninth Circuit concluded Selfa and Wright remain controlling law in this Circuit even after Johnson and Leocal and rejected the defendant's assertion that unarmed bank robbery does not require violent force or intentional conduct. 691 F. App'x 312, 312 (9 Cir. 2017). The court noted "intimidation under § 2113(a) requires the necessary level of violent physical force as defined by Johnson," and, "as a general intent statute, conviction under § 2113(a) requires intentional use or threatened use of force and therefore does not conflict with Leocal . . . or Fernandez-Ruiz." Id. at 313. The Ninth Circuit concluded "no intervening higher authority is clearly unreconcilable with Selfa and Wright, and those precedents are controlling here." Id. (quotation omitted). See also United States v. Pritchard, No. 15-50278, 2017 WL 2219005 (9 Cir. May 18, 2017)(rejecting the argument that Wright and Selfa were overruled by Leocal and/or Johnson); United States v. Jordan, 680 F. App'x 634, 634-35 (9 Cir. 2017) (holding § 2113(a) is a crime of violence and rejecting the argument that later cases overruled or displaced Wright and/or Selfa); United States v. Howard, 650 F. App'x 466, 468 (9 Cir. 2016)(affirming Selfa's continued vitality). Although these are unpublished opinions and, therefore, not precedential, this Court, nevertheless, is bound by Wright and Selfa. In addition, the Court adopts the reasoning of Cross, Pritchard, Johnson, and Howard and concludes unarmed bank robbery satisfies the requirement of § 924(c)(3)(A). The Court, therefore, concludes § 2113(a) is a crime of violence under the force clause of § 924(c) and Defendant's sentences were not imposed in violation of the Constitution or the laws of the United States.
Accordingly, the Court denies Defendant's Motions to Vacate, Set Aside or Correct Sentence pursuant to § 2255. In addition, the Court finds Defendant has not made a substantial showing of the denial of a constitutional right, and, therefore, the Court declines to issue a certificate of appealability in either Case No. 3:11-cr-00375-BR or 3:11-cr-00379-BR.
CONCLUSION
For these reasons, the Court DENIES Defendant's Motion (#66) to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed in Case No. 3:11-cr-00375-BR and Defendant's Motion (#59) to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed in Case No. 3:11-cr-00379-BR and DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
DATED this 7 day of December, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge