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holding that § 2114 is divisible and that "the aggravated form of § 2114 robbery necessarily includes as an element the use, attempted use, or threatened use of force capable of causing physical pain or injury"
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CASE NO. C16-5559 BHS CASE NO. CR11-5505BHS
03-29-2017
CHAUNCEY L. WILLIAMS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
This matter comes before the Court on Petitioner Chauncey L. Williams's ("Williams") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Dkt. 1. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.
I. BACKGROUND
On January 24, 2013, Williams was convicted of armed postal robbery in violation of 18 U.S.C. § 2114(a). CR11-5505, Dkts. 213, 246. Williams was also convicted of brandishing a weapon in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Id. The Court calculated Williams's Sentencing Guidelines range as 63-78 months on the armed postal robbery charge and a mandatory consecutive minimum of 84 months on the "brandishing in furtherance" charge, for an effective total range of 147 to 162 months. Id., Dkt. 274 at 8. On February 10, 2014, the Court sentenced Williams below the guidelines range to 120 total months of imprisonment. Id., Dkts. 245, 246.
On June 24, 2016, Williams filed the instant petition. Dkt. 1. Williams argues that his conviction under 18 U.S.C. § 924(c)(1)(A)(ii) was unconstitutional on the basis that armed postal robbery is not a "crime of violence" under 18 U.S.C. § 924(c)(3). Id. He seeks relief under Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"), and Welch v. United States, 136 S. Ct. 1257 (2016). Id. On November 14, 2016, the Government responded. Dkt. 10. The Government opposes Williams's motion on numerous procedural grounds and also argues that Johnson II is inapplicable to Williams's sentence. Id. On December 13, 2016, Williams replied. Dkt. 13.
On February 15, 2017, the Court requested supplemental briefing in light of the Ninth Circuit's previous ruling in United States v. Hasan, 983 F.2d 150 (9th Cir. 1992). In Hasan, the Ninth Circuit determined that postal robbery under 18 U.S.C. § 2114(a) categorically qualifies as a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). Id. at 151.
On February 27, 2016, Williams filed supplemental briefing. Dkt. 15. On March 7, the Government filed its supplemental briefing. Dkt. 18. On March 17, 2017, Williams replied. Dkt. 21.
II. DISCUSSION
Williams argues that his sentence is unconstitutional on the basis that he was wrongly convicted under 18 U.S.C. § 924(c)(1)(A)(ii). "When collaterally attacked, [a] judgment of a court carries with it a presumption of regularity." Johnson v. Zerbst, 304 U.S. 458, 468 (1938). Therefore, the burden is on Williams to establish, by a preponderance of the evidence, that his "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). See also Zerbst, 304 U.S. at 468-69; Simmons v. Blodgett, 110 F.3d 39, 41-42 (9th Cir. 1997).
A. Legal Framework
To be convicted under § 924(c)(1)(A)(ii), a defendant must have "brandished" a firearm in furtherance of a predicate drug trafficking crime or a "crime of violence." 18 U.S.C. § 924(c)(1)(A)(ii). Williams argues that his conviction under 18 U.S.C. § 924(c)(1)(A)(ii) should be vacated on the grounds that the "residual clause" of 18 U.S.C. § 924(c)(3)(B) is unconstitutional under Johnson II and, consequently, armed postal robbery is no longer a predicate "crime of violence" under § 924(c)(3).
In Johnson II, the Court determined that the residual clause under 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act ("ACCA") is void for unconstitutional vagueness. 135 S. Ct. 2551. The ACCA residual clause states:
The term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Williams relies on Johnson II and the Ninth Circuit's reasoning in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (2016), to argue that the residual clause of § 924(c)(3)(B) is likewise unconstitutionally vague. Similar to the ACCA, the § 924(c)(3) residual clause provides:
For the purposes of this subsection, the term "crime of violence" means an offense that is a felony and . . . 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.18 U.S.C. § 924(c)(3) (emphasis added).
However, before the Court determines whether the § 924(c)(3)(B) residual clause is unconstitutional under Johnson II, the Court may first consider whether § 924(c)(3)(B) is applicable to Williams's sentence. To do so, Williams must show that his armed postal robbery conviction was categorized as a crime of violence under the residual clause, as opposed to the elements clause of § 924(c)(3)(A). See Knox v. United States, C16-5502 BHS, 2017 WL 347469, at *2 (W.D. Wash. Jan. 24, 2017); Doriety vs. United States, 2:16-cv-00924-JCC, Dkt. 12 (W.D. Wash. 2016).
B. Elements Clause
The Court determines that Williams's conviction under 18 U.S.C. § 2114(a) constitutes a crime of violence under the elements clause of § 924(c)(3)(A). Although not every § 2114(a) offense will qualify as a crime of violence under the categorical approach, § 2114(a) is divisible and Williams's conviction for armed robbery constitutes a crime of violence under the modified categorical approach.
1. Categorical Approach
Generally, "[t]o determine whether an offense qualifies as a 'crime of violence' under section 924(c)(3), the Ninth Circuit applies the 'categorical approach' set forth in Taylor v. United States, 495 U.S. 575 (1990)." United States v. Bell, 158 F. Supp. 3d 906, 910 (N.D. Cal. 2016) (citing United States v. Piccolo, 441 F.3d 1084, 1086-87 (9th Cir. 2006)). Under the categorical approach, "[i]f the elements of the offense criminalize a broader swath of conduct than the conduct covered by the [§ 924(c)(3)] definition, the offense cannot qualify as a crime of violence, even if the particular facts underlying the defendant's own case might satisfy that definition." United States v. Bell, 158 F. Supp. 3d 906, 911 (N.D. Cal. 2016).
The postal robbery statute states:
A person who assaults any person having lawful charge, control, or custody of any mail matter . . . with intent to rob, steal, or purloin such mail matter . . . or robs or attempts to rob any such person of mail matter, . . . shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person . . . or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.18 U.S.C. § 2114(a).
In Hasan, the Ninth Circuit determined that, under the categorical approach, postal robbery under 18 U.S.C. § 2114(a) qualifies as a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). 983 F.2d at 151. Although Hasan was decided in the context of the United States Sentencing Guidelines, the elements clause of U.S.S.G. § 4B1.2(a)(1) and that of § 924(c)(3)(A) are nearly identical—the only difference being that § 924(c)(3)(A) encompasses crimes against property in addition to those against the person. U.S.S.G. § 4B1.2(a)(1); 18 U.S.C. § 924(c)(3)(A). Williams argues that Hasan should not control the Court's assessment of § 924(c)(3) because, when Hasan was decided, the Ninth Circuit had not yet informed its interpretation of the term "physical force" with the "violent force" standard subsequently set forth in Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"). In Johnson I, the Supreme Court determined that the phrase "physical force," as it appears in the residual clause of the ACCA, "means violent force—that is, force capable of causing physical pain or injury to another person." 559 U.S. at 140. Unless Hasan is irreconcilable with Johnson I, the Court must follow Hasan's holding that convictions under § 2114(a) include as an element the use, attempted use, or threatened use of physical force against the person of another. See United States v. Dunn, 728 F.3d 1151, 1156-57 (9th Cir. 2013).
A party may be convicted under 18 U.S.C. § 2114(a) for either (1) robbing or attempting to rob, or (2) assaulting with the intent to rob, steal, or purloin. The Ninth Circuit adopted the Seventh Circuit's reasoning that, in § 2114(a), "[t]he word 'rob' is used in its common law sense, that is, it involves the taking, animo furandi, and asportation of property from the person of another against his will by violence or putting him in fear." Hasan, 983 F.2d at 151 (quoting United States v. Rodriguez, 925 F.2d 1049, 1052 (7th Cir. 1991)) (emphasis in original). In determining that the "robbery" aspect of § 2114(a) satisfies the U.S.S.G. § 4B1.2(a)(1) elements clause, the Circuit in Hasan addressed the contention that "robbery" is overbroad because it encompasses violence against one's property and not just one's person. Id. Emphasizing that robbery required a taking "by violence or putting [one] in fear," and also relying upon the express statement regarding robbery in the application notes to the sentencing guidelines, the Circuit held that "the offense of postal robbery as defined by 18 U.S.C. § 2114 is [a crime of violence]." Id. at 152.
As the term "assault" in § 2114(a) lacks a statutory definition, it too takes on its common law meaning, which in the Ninth Circuit requires "either a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm." United States v. Chapman, 528 F.3d 1215, 1219-20 (9th Cir. 2008) (quoting United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976)). Therefore, the Circuit concluded in Hasan that "[i]nsofar as [§ 2114(a)] applies to one who 'assaults any person' with the intent to commit one of the specified actions, 'the use, attempted use, or threatened use of physical force against the person of another' is obviously an element of the offense established by this provision." Hasan, 983 F.2d 150, 151 (9th Cir. 1992).
At first blush, it appears to the Court that the common law definitions of "assault" and "robbery" referenced in Hasan plainly include as an element the use, attempted use, or threatened use of the violent physical force contemplated in Johnson I. However, the Ninth Circuit has concluded otherwise since Hasan. Previous to Hasan, the Ninth Circuit had recognized that the common law definition of assault "does not require that any particular level of force be used." United States v. Sommerstedt, 752 F.2d 1494, 1496 (9th Cir. 1985). In light of that holding in Sommerstedt, the Ninth Circuit has since held that the term "assault" under 18 U.S.C. § 111(a) "criminalizes a broader swath of conduct than the conduct covered by [the violent force] definition" in Johnson I and, therefore, such an assault "is not, categorically, a crime of violence." United States v. Dominguez- Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014). It appears that 18 U.S.C. § 111(a) relies upon the same common law definition of "assault" as § 2114(a). Compare Hasan, 983 F.2d at 151 (citing United States v. Lawrence, 699 F.2d 697, 702 (7th Cir. 1983) ("Assault as proscribed by the statute includes either an attempted battery or the placing of another in reasonable apprehension of bodily harm.")) with Dominguez-Maroyoqui, 748 F.3d at 921 (citing Chapman, 528 F.3d at 1221). Accordingly, under the Ninth Circuit's reasoning in Dominguez-Maroyoqui, a conviction under § 2114(a) for assaulting a postal worker does not categorically match the crime of violence definition found in the elements clause.
As a note, the Court observes that Dominguez-Maroyoqui fails to address that Sommerstedt's holding focused narrowly on upholding assault convictions under § 111(a) regardless of the level of force actually used by the defendant. The Sommerstedt decision does not purport to relieve the prosecution of its burden to prove the elements of an assault (that are expressly set forth in that opinion) which require either (1) a willful attempt to inflict injury, or (2) a threat to inflict injury, coupled with apparent present ability, that causes a reasonable apprehension of immediate bodily harm. Sommerstedt, 752 F.2d at 1496. Accordingly, while Sommerstedt held that a § 111(a) assault does not require the use of any particular level of force, it seems that such a conviction still requires that a defendant attempt or threaten to use a type of force that would cause bodily harm or injury. The elements clause specifically includes not only the use of force, but also the threatened or attempted use thereof. See 18 U.S.C. § 924(c)(3)(A). Accordingly, despite Dominguez-Maroyoqui's holding, it seems wholly illogical that a court could conclude that "assault" does not necessarily include a threatened or attempted use of "force capable of causing physical pain or injury to another person." Johnson I, 559 U.S. at 140.
The Ninth Circuit has not addressed whether the common law form of robbery contemplated under § 2114(a) requires the level of violent force described by Johnson I. The notion that a conviction for the type of common law robbery contemplated by § 2114(a) should not require the prosecution to prove the type of violent force necessary to qualify under the elements clause strikes the Court as counterintuitive, if not absurd. See United States v. Parnell, 818 F.3d 974, 982 (9th Cir. 2016) (Watford, concurring). However, at least one other District Court in the Ninth Circuit has concluded that it does not. See United States v. Bell, 158 F. Supp. 3d 906, 919-20 (N.D. Cal. 2016). The District Court in Bell relied upon the fact that the Seventh Circuit, in Rodriguez, has previously held that a § 2114(a) robbery could be committed by using only minimal force. Id. Rodriguez is the very case from which the Ninth Circuit drew its definition of "robbery" when deciding Hasan. See Hasan, 983 F.2d at 151.
The Court adopts the reasoning expressed in Bell because, under the Seventh Circuit's analysis in Rodriguez, a robbery conviction under § 2114(a) requires only a de minimis use of force, and Hasan expressly relied upon Rodriguez in its construction of § 2114(a). Accordingly, the Court finds that it is bound by the Ninth Circuit's reasoning in Dominguez-Maroyoqui. When a conviction may be upheld based on the use of minimal force, it does not categorically require the violent type of force necessary to qualify under the elements clause. See United States v. Howard, 650 Fed. Appx. 466, 468 n.1 (9th Cir. 2016), as amended (June 24, 2016) ("This circuit has held that crimes that require only a de minimis use of force do not qualify as crimes of violence . . . .").
Based on the foregoing, the Court finds that the Ninth Circuit's decision in Hasan is irreconcilable with Johnson I, at least to the extent that Hasan may be applied in the context of § 924(c)(3), and Hasan therefore does not control the Court's decision in this case. Moreover, the Court finds that, under the most recent reasoning of the Ninth Circuit, assault and robbery under 18 U.S.C. § 2114(a) are not crimes of violence under the § 924(c)(3)(A) elements clause.
The Court notes that it does not assess the effect of Johnson I on the Hasan holding as it applies to U.S.S.G. § 4B1.2(a)(1).
2. Modified Categorical Approach
Even if a crime does not qualify as a crime of violence under the standard categorical approach, it may nonetheless qualify under the modified categorical approach.
The modified categorical approach allows courts to look beyond the statutory text to a limited set of documents to determine the elements of the . . . offense of which the defendant was convicted when some alternative elements of the . . . crime would match the federal, generic crime, and other alternative elements would not.Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014).
The Supreme Court "has recognized a 'narrow range of cases' in which courts may apply the 'modified categorical approach.'" Id. (quoting Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). Specifically, Courts may apply the modified categorical approach only where a statute has a "divisible structure," meaning that the statute "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). However, a statute is not divisible if it lists only alternative means of satisfying a single element. See id. at 2256. Whether a statutory clause sets forth alternative means or elements can generally be determined on the face of the statute: "where a statute sets out separate punishment clauses, each adding further elements to the crime, the punishment clauses constitute separate and distinct criminal offenses, rather than one offense with different punishments." United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008) (citing Jones v. United States, 526 U.S. 227, 252 (1999). See also Mathis, 136 S. Ct. at 2256. Ultimately, the underlying focus in determining whether a statute lays out an alternative "means" or "element" is distinguishing whether "things must be charged (and so are elements) [or] need not be (and so are means)." Mathis, 136 S. Ct. at 2256.
The Court concludes that the statute is divisible. The statute at issue describes two levels of offenses subject to different punishments. First, it describes the basic version of the crime, punishable by ten years, which may be committed by robbing, attempting to rob, or assaulting with the intent to rob, steal, or purloin. 18 U.S.C. § 2114(a). Second, it describes an aggravated crime punishable by twenty-five years, which requires that, in the course of the basic offense, the offender wound the victim or put his life in jeopardy by use of a dangerous weapon. Id. Therefore, § 2114(a) is divisible into two separate parts, at the very least.
It appears that the § 2114(a) is actually divisible into four separate crimes: (1) assault, (2) robbery, (3) robbery aggravated by wounding, and (4) robbery aggravated by the use of a dangerous weapon. Because Williams was convicted of the aggravated crime, the Court need not consider the divisibility of the unaggravated provisions.
As a divisible statute, the Court may consult charging information and jury instructions to determine under which part of the statute Williams was convicted. Mathis v. United States, 136 S. Ct. 2243 at 2249 ("Under [the modified categorical] approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of."). Consulting the jury instructions in this case, it is clear that Williams was convicted of the aggravated form of robbery that included as an element that he put the victim's life in jeopardy by use of a dangerous weapon. Cause No. CR11-55505, Dkt. 127 at 12-13. See also id., Dkt. 26.
Williams argues that, even if the statute is divisible, an element of placing the victim's life in jeopardy by use of a deadly weapon is still not a categorical match for the violent force required by Johnson I. To support this argument, Williams places great emphasis on the Ninth Circuit's analysis in Parnell. In that case, the Ninth Circuit decided that Massachusetts' armed robbery statute did not require the necessary level of violent force to constitute a crime of violence. 818 F.3d at 981. To reach that conclusion, the Circuit noted that the "statute does not require a weapon be used or displayed, or even that the victim be aware of it." Id. at 980. Therefore, the Circuit concluded that, "because the degree of force required to commit armed robbery in Massachusetts is immaterial so long as the victim is aware of it, Massachusetts' armed robbery statute does not have as an element the use, attempted use, or threatened use of physical force against the person of another." Id. at 981 (quotation marks omitted).
Under § 2114(a) however, the degree of force implicated by the aggravated crime is not immaterial. Instead, the aggravated crime expressly requires (1) force that is sufficient to "wound" or (2) the use of a dangerous weapon that "puts [the victim's] life in jeopardy." 18 U.S.C. § 2114(a). The Ninth Circuit has recognized that "[p]utting life in jeopardy . . . requires 'a holdup involving the use of a dangerous weapon actually so used during the robbery that the life of the person being robbed is placed in an objective state of danger.'" United States v. Coulter, 474 F.2d 1004, 1005 (9th Cir. 1973) (quoting Wagner v. United States, 264 F.2d 524, 530 (9th Cir. 1959)) (emphasis added). Under this standard for "putting life in jeopardy" the Court concludes that the aggravated form of § 2114(a) robbery necessarily includes as an element the use, attempted use, or threatened use of force capable of causing physical pain or injury.
Other courts considering the similar language found in § 2113(d) have likewise concluded that placing one's "life in jeopardy by the use of a dangerous weapon" categorically satisfies the elements clause. See, e.g., McFarland v. United States, CR 00-1025-JFW, 2017 WL 810267, at *7 (C.D. Cal. Mar. 1, 2017) ("[§ 2113](d)'s additional element that the defendant 'puts in jeopardy the life of any person by the use of a dangerous weapon,' categorically defines Counts 2 and 4 as a 'crimes of violence.'"); United States v. Watson, 14-00751-01 DKW, 2016 WL 866298, at *7 (D. Haw. Mar. 2, 2016) ("2113(d)'s additional element that one 'puts in jeopardy the life of any person by the use of a dangerous weapon,' categorically defines Count 5 as a 'crime of violence.'"). The few decisions the Court can find considering the language as it appears in § 2114(a) have also reached the same conclusion. Bryant v. United States, 2:09-CR-796-PMD, 2017 WL 878041, at *2 (D.S.C. Mar. 6, 2017); United States v. Enoch, 15 CR 66 , 2015 WL 6407763, at *3 (N.D. Ill. Oct. 21, 2015) ("It is beyond question that a robbery that puts a person's life in jeopardy by the use of a dangerous weapon is a violent crime under the Johnson definition and section 924(a).").
Finally, the Court notes that its analysis is unaffected by the fact that the twenty-five year maximum that applies to the enhanced crime may be triggered by a subsequent basic offense under § 2114(a). See 18 U.S.C. § 2114(a) (" . . . or for a subsequent offense, shall be imprisoned not more than twenty five years."). As noted above, the ultimate task in construing a divisible statute is distinguishing what elements of the statute must be charged by the prosecution and found by a jury. If the Government sought to rely upon the subsequent offense clause of § 2114(a), it would be required to charge, and so prove, at least two separate instances of the § 2114(a) basic offense. Alternatively, where the Government seeks to rely upon the aggravated crime of robbery and placing a victim's life in danger by use of a dangerous weapon, it must charge and prove the aggravating factor as an element, as it did here. See Cause No. CR11-55505, Dkt. 26.
Because the Court concludes that Williams's conviction categorically qualifies as a crime of violence under the elements clause of § 924(c)(3)(A), the petition must be denied.
C. § 924(c)(1)(A)(ii)
Additionally, the Court notes the oddity that it must consider whether the underlying crime of armed mail robbery under 18 U.S.C. § 2114(a) constitutes a "crime of violence," when 18 U.S.C. § 924(c)(1)(A)(ii) itself requires that a jury convict the defendant of "brandishing" a firearm.
Under § 924(c)(4):
[T]he term "brandish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.18 U.S.C. § 924(c)(4).
To the extent that the "brandishing" enhancement under 18 U.S.C. § 924(c)(1)(A)(ii) is an element of a crime that requires conviction by a jury, see Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013), it would appear that any crime that is accompanied by a conviction under the § 924(c)(1)(A)(ii) enhancement should necessarily qualify as a crime of violence. While the term "intimidate" does not necessarily require an express threat of violent physical force, see United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983), the term "brandish" goes further by requiring a knowing and willful threat of violent physical force: specifically, that a defendant communicate the possession of a firearm in order to intimidate a victim. Such an offense would certainly qualify as a "threatened use of physical force" under the elements clause of § 924(c)(3). While the Court understands that the enhancements under § 924(c)(1)(A) are for possession of a firearm in furtherance of a crime of violence, it seems illogical to conclude that any underlying predicate should not be considered a crime of violence when accompanied by the "brandishing" of a firearm.
Regardless, the Court need not address whether a conviction enhanced by 18 U.S.C. § 924(c)(1)(A)(ii) is necessarily a crime of violence, because Williams's underlying offense under 18 U.S.C. § 2114(a) already qualifies under the elements clause of § 924(c)(3)(A). Moreover, while Williams was convicted by a jury of possessing a firearm in violation of § 924(c)(1)(A), the fact that he was convicted in early 2013 means that his "brandishing" of a firearm was treated as a judicial determination at sentencing—not a finding at trial by a jury. See Dkt. 209 at 16. See also United States v. O'Brien, 560 U.S. 218, 233 (2010), overruled by Alleyne, 133 S. Ct. 2151 (citing Harris v. United States, 536 U.S. 545, 546 (2002)) ("[S]ections 924(c)(1)(A)(ii) and (iii) provide sentencing enhancements for brandishing or discharging the firearm, and the [Supreme] Court has held that these enhancements are sentencing factors to be found by a judge.").
Notably, Williams was convicted in January of 2013 and was sentenced in February of 2014, meaning that Alleyne was already decided at the time of Williams's sentencing. See 133 S. Ct. at 2151. Nonetheless, the issue of ineffective assistance of counsel is not before the Court and, regardless, Williams's judgment became final on February 24, 2014. Dkt. 246. See also Fed. R. App. P. 4(b)(1)(A); 28 U.S.C. § 2255(f)(1). Also, it appears that any claim based on Alleyne would likely be procedurally defaulted, as Williams never appealed his conviction. See United States v. Braswell, 501 F.3d 1147, 1150 n.1 (9th Cir. 2007). Therefore, the Court is powerless to address this aspect of Williams's sentence calculation.
D. Certificate of Appealability
Williams also requests that the Court issue a certificate of appealability for his petition. In order to proceed with any appeal, a petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In this case, the Court finds that "jurists of reason would find it debatable whether the petition states a valid claim . . . ." Slack, 529 U.S. at 484. The Ninth Circuit has not previously considered the level of force required for the prosecution to obtain a conviction on an aggravated § 2114(a) charge in relation to the level of force required to constitute a "crime of violence" under Johnson I. The Court is convinced that the requirement that a firearm be "actually so used during the robbery that the life of the person being robbed is placed in an objective state of danger," Coulter, 474 F.2d at 1005, indicates a level of force that satisfies the Johnson I standard. Nonetheless, the Court sees how another court could disagree regarding the construction of § 2114(a) and the requisite force to obtain a conviction. See Rodriguez, 925 F.2d at 1052-53 ("The government is not obliged to prove that a gun held by the perpetrator of a postal robbery is pointed at the victim, just as it is not obliged to prove that the gun was actually loaded or that the perpetrator of the crime was disposed to use the weapon. The use of a gun is per se sufficient cause to impose the enhanced sentence.") (Citation and quotation marks omitted). Cf. United States v. Hudson, 564 F.2d 1377, 1380 (9th Cir. 1977) ("[T]o place lives in jeopardy by the use of a dangerous weapon meant more than merely subjecting the victims to force and fear. The test for jeopardy is an objective one, requiring actual danger.") (citations omitted). Accordingly, the Court grants Williams's request for a certificate of appealability.
III. ORDER
Therefore, it is hereby ORDERED that Williams's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1) is DENIED. Williams's request for a certificate of appealability is GRANTED. The Clerk shall enter judgment and close this case.
Dated this 29th day of March, 2017.
/s/_________
BENJAMIN H. SETTLE
United States District Judge