Opinion
20-30183 20-30189 21-30043
06-10-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VERNE JAY MERRELL, AKA Thomas C. James, AKA Jay, AKA Carl Avery Martell, AKA Jay Merrell, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT SHERMAN BERRY, AKA Jim Preston, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES HARRISON BARBEE, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted April 12, 2022 Seattle, Washington
Appeal from the United States District Court Nos. 2:96-cr-00257-WFN-1, 2:96-cr-00257-WFN, 2:96-cr-00259-WFN-1, 2:96-cr-00258-WFN-1 for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding
Before: BOGGS, [**] HURWITZ, and SUNG, Circuit Judges.
MEMORANDUM [*]
In 1997, Verne Merrell, Robert Berry, and Charles Barbee ("appellants") were convicted of twelve offenses, including four crimes of violence under 18 U.S.C. § 924(c). In 2019, the district court granted relief under 28 U.S.C. § 2255 and vacated two of the § 924(c) convictions, finding that the underlying predicate offenses did not qualify as crimes of violence in light of United States v. Davis, 139 S.Ct. 2319, 2336 (2019). The district court then resentenced appellants on the remaining § 924(c) convictions, both of which were predicated on armed bank robbery in violation of 18 U.S.C. § 2113(a). The district court imposed a thirty-year sentence on one of those counts because the firearm used in that crime was a "destructive device" - a pipe bomb. See 18 U.S.C. §924(c)(1)(B)(ii).
1. Appellants contend that the thirty-year penalty imposed for use of the pipe bomb was improper under the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury did not find that the "firearm" used in the bank robbery was a "destructive device." See United States v. Perez, 129 F.3d 1340, 1342 (9th Cir. 1997) ("For purposes of § 924(c)(1), the type of firearm used . . . is an element of the offense on which a jury instruction and finding is required."). We reject that contention. The jury was correctly instructed that under § 924(c)(1), a "firearm" includes a "destructive device," including "any explosive, [or] incendiary . . . bomb." See 18 U.S.C. § 921(a)(3)(A)-(D), (a)(4)(A) (Sept. 30, 1996). In the same instructions, the court included a copy of Count Five, which alleged that the offense involved use of "a firearm that is a destructive device (a pipe bomb)." More importantly, the verdict form returned by the jury expressly stated that the jury found the appellants "guilty of the offense of use of a firearm (pipe bomb) during a crime of violence (armed bank robbery on April 1, 1996) as alleged in Count 5 of the Indictment."
2. Barbee and Merrell also contend that armed bank robbery in violation of 18 U.S.C. § 2113(a) is not categorically a crime of violence, arguing that our decision to the contrary in United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018), cannot be reconciled with the Supreme Court's subsequent opinion in Stokeling v. United States, 139 S.Ct. 544, 550 (2019). Our decisions after Stokeling, however, have reaffirmed that armed bank robbery in violation of § 2113(a) is categorically a crime of violence. See United States v. Hylton, 30 F.4th 842, 849 (9th Cir. 2022); Young v. United States, 22 F.4th 1115, 1121 (9th Cir. 2022).
We hold in a separate opinion filed today that the First Step Act of 2018, Pub. L. No. 115-391, tit. IV, § 403, 132 Stat. 5194, 5221-22 (2018), applies to appellants' resentencings after the grant of 18 U.S.C. § 2255 relief, and remand for the district court to resentence appellants in light of that Act. United States v. Merrell, No. 20-30183 (9th Cir. 2022).
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.