Opinion
Case No. 2:14-cr-00071-APG-CWH
10-06-2016
UNITED STATES OF AMERICA, Plaintiff, v. BARRY LAWRENCE SPELL, Defendant.
ORDER DENYING (1) MOTION TO VACATE, (2) MOTION FOR HEARING, AND (3) REQUEST FOR CERTIFICATE OF APPEALABIILTY (ECF Nos. 27, 30)
Defendant Barry Spell moves to correct his sentence under 28 U.S.C. § 2255 based on his contention that he no longer qualifies as a career offender under U.S. Sentencing Guideline § 4B1.1 following the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Spell asserts that his instant federal bank robbery offense and two prior federal bank robbery offenses, all in violation of 18 U.S.C. § 2113(a), are not crimes of violence under the applicable guideline. In his reply, Spell also requests a certificate of appealability if I deny his motion. Finally, Spell requests an emergency hearing for resolution of his motion.
I deny Spell's motion to vacate because controlling precedent establishes that federal bank robbery under § 2113(a) is a crime of violence under § 4B1.1. I deny the motion for hearing as moot. Finally, I deny Spell's motion for a certificate of appealability.
Under § 4B1.1(a), the career offender guideline, a defendant is a career offender if:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (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.The parties dispute whether the instant offense and two prior felony convictions for bank robbery under § 2113(a) are crimes of violence.
Guideline § 4B1.2 defines a "crime of violence" for purposes of the career offender guideline:
(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.[]
This guideline was amended in August 2016. I refer to the prior version.
The first clause is sometimes referred to as the "force" clause. The second clause lists specific crimes that will qualify if the crime of conviction is a categorical match for the elements of the generic listed offenses. The language in (a)(2) which refers to crimes that otherwise involve conduct presenting a serious risk of physical injury is known as the "residual" clause. This is the language that Spell contends was deemed unconstitutionally vague under Johnson, and that he also claims is the only basis for finding him a career offender under this guideline.
The Ninth Circuit previously has determined that federal bank robbery under § 2113(a) is a crime of violence. United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (holding that "persons 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."). Spell contends more recent Supreme Court authority has undermined Selfa's holding. However, the Ninth Circuit recently reaffirmed its conclusion in Selfa. See United States v. Steppes, No. 15-10243, 2016 WL 3212168, at *1 (9th Cir. June 10, 2016) (holding federal bank robbery under § 2113(a) is a crime of violence under Guideline § 4B1.1 as defined under § 4B1.2); United States v. Howard, No. 15-10042, 2016 WL 2961978, at *1 (9th Cir. May 23, 2016), as amended (June 24, 2016) (holding Hobbs Act robbery qualifies as a crime of violence under 18 U.S.C. § 924(c) by comparing it to federal bank robbery under § 2113(a) and relying on Selfa).
See also United States v. Steppes, 2:14-cr-00100-GMN-GWF, ECF No. 26 at 7 (D. Nev. April 6, 2015) (identifying the defendant's prior crimes as five counts of bank robbery under § 2113(a)). --------
In light of this controlling authority, I deny Spell's motion under § 2255. Spell's instant offense and prior convictions under § 2113(a) are crimes of violence under § 4B1.2. Thus, Spell was properly sentenced as a career offender.
To appeal this order, Spell must receive a certificate of appealability from a circuit or district judge. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. 22-1(a). To obtain a certificate of appealability, Spell "must make a substantial showing of the denial of a constitutional right, a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quotation omitted). Given the controlling Ninth Circuit authority on the issue Spell raises, I deny his request for a certificate of appealability.
IT IS THEREFORE ORDERED that defendant Barry Spell's motion under 28 U.S.C. § 2255 (ECF No. 27) is DENIED.
IT IS FURTHER ORDERED that defendant Barry Spell's emergency motion for status conference (ECF No. 30) is DENIED as moot.
IT IS FURTHER ORDERED that defendant Barry Spell's request for a certificate of appealability is DENIED.
DATED this 6th day of October, 2016.
/s/_________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE