Opinion
2:13-cr-00322-RCJ-VCF-1
05-24-2017
UNITED STATES OF AMERICA, Plaintiff, v. DANIEL LEE STRANDBERG, Defendant.
ORDER
Defendant pled guilty to two counts of bank robbery, and the Court sentenced him to 180 months of imprisonment. Defendant filed a motion for habeas corpus relief, arguing that the residual clause allegedly applied to him under U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague. The Supreme Court has since ruled, however, that "the Guidelines are not amenable to a vagueness challenge." Beckles v. United States, 137 S. Ct. 886, 894 (2017). Even if they were, Defendant's claim would fail, because the physical-force clause of § 4B1.2(a)(1) applies to bank robbery. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000).
Although the Court of Appeals used the term "armed bank robbery" in Wright, it did so not because only armed bank robbery under § 2113(d) qualifies as a crime of violence but because the defendant in Wright who was challenging a compound weapons offense had in fact committed armed bank robbery. The Court of Appeals reasoned, however, that simple bank robbery under § 2113(a) qualifies as a categorical crime of violence under the physical force clause of § 924(c)(3)(A). See id. (quoting and citing 18 U.S.C. § 2113(a)) ("Armed bank robbery qualifies as a crime of violence because one of the elements of the offense is a taking 'by force and violence, or by intimidation.'"). The quoted offense element is found in § 2113(a), i.e., simple bank robbery, without reference to subsection (d), which simply provides enhanced penalties for armed bank robbery. --------
Defendant has filed a notice of voluntary dismissal invoking Civil Rule 41(a)(1)(A)(i), to which the Government has objected, arguing that the Court should deny the § 2255 motion on the merits. The Court agrees with the Government. The Civil Rules may apply insofar as not inconsistent with § 2255 or the Section 2255 Rules, but application of the Civil Rules is discretionary with the district court, not mandatory. See Section 2255 Rule 12 ("may be applied"). The Court declines to apply Rule 41 to permit Defendant to avoid a merits dismissal of a motion that was plainly without merit under Wright when filed, regardless of Beckles.
CONCLUSION
IT IS HEREBY ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. 2255 (ECF No. 89), the Motion to Defer Ruling (ECF No. 90), and a certificate of appealability are DENIED.
IT IS SO ORDERED. DATED: This 24th day of May, 2017.
/s/_________
ROBERT C. JONES
United States District Judge