Opinion
Case No. 2:12-cr-00405-APG-CWH
06-28-2016
UNITED STATES OF AMERICA, Plaintiff, v. JASON ALAN STEELE, Defendant.
ORDER DENYING MOTION TO VACATE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
ECF No. 48
Defendant Jason Steele pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). ECF No. 29. Based on that offense and two prior federal bank robbery convictions, he was sentenced to 151 months in prison as a career offender under United States Sentencing Guidelines § 4B1.1. ECF Nos. 32, 33. Steele subsequently filed a motion under 28 U.S.C. § 2255 to vacate his sentence. ECF No. 48. He contends that he does not qualify as a career offender based on the application of Johnson v. United States, 135 S.Ct. 551 (2015). Steele is incorrect.
Johnson deemed unconstitutionally vague the Armed Career Criminal Act's residual clause defining "violent felony." The residual clause in Sentencing Guideline § 4B1.2(a)(2) contains identical language. The Supreme Court of the United States recently held that Johnson announced a new substantive rule that has retroactive effect. Welch v. United States, 136 S.Ct. 1257, 1265 (2016). Nevertheless, Steele remains a career offender under Sentencing Guideline § 4B1.2(a)(1). Under binding Ninth Circuit precedent, bank robbery qualifies as a crime of violence under the elements clause of § 4B1.2(a)(1). In United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990), the Ninth Circuit held "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."
Even more recently, the Supreme Court granted certiorari to address the question, among others, of whether Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in § 4B1.2(a)(2). Beckles v. United States, No. 15-8544, 2016 WL 1029080, at *1 (U.S. June 27, 2016). --------
Steele questions the validity of Selfa in light of more recent decisions in Descamps v. United States, 133 S. Ct. 2276 (2013); Johnson v. United States, 559 U.S. 133, 140 (2010); and Taylor v. United States, 495 U.S. 575, 602 (1990). However, the Ninth Circuit recently cited Selfa with approval, confirming its continuing precedential value for the proposition that bank robbery qualifies as a crime of violence under § 4B1.2(a)(1). United States v. Howard, No. 15-10042, 2016 WL 2961978, at *1 (9th Cir. May 23, 2016); see also United States v. Watson, No. 14-00751-01 DKW, 2016 WL 866298, at *7-8 (D. Haw. Mar. 2, 2016) (holding that bank robbery qualifies as a crime of violence). Based on Selfa, Steele qualifies as a career offender under the elements clause of Sentencing Guideline § 4B1.2(a)(1). Thus, his motion to vacate and correct his sentence must be denied.
In denying Steele's § 2255 motion, I also must decide whether to issue a certificate of appealability. See R. 11 Governing § 2255 Cases in the U.S. Dist. Cts. ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). "The standard for a certificate of appealability is lenient." Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc), overruled on other grounds by Swarthout v. Cooke, 562 U.S. 216 (2011). A petitioner is required to demonstrate only "that reasonable jurists could debate the district court's resolution or that the issues are adequate to deserve encouragement to proceed further." Id. (citation omitted). The standard "requires something more than the absence of frivolity but something less than a merits determination." Id.
Reasonable jurists could debate the impact of Johnson on the Sentencing Guidelines, and the validity of older cases like Selfa after Descampes, Rendon, and Johnson. The Supreme Court's recent grant of certiorari to address the applicability of Johnson to § 4B1.2(a)(2) confirms that this area continues to evolve. Thus, I grant Steele a certificate of appealability. / / / / / / / /
IT IS THEREFORE ORDERED that Steele's motion (ECF No. 48) is DENIED.
IT IS FURTHER ORDERED that Steele is GRANTED a certificate of appealability.
Dated this 28th day of June, 2016.
/s/_________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE