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Johnson v. United States

United States District Court, D. Idaho

May 23, 2018

BRYAN MARK JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge

         INTRODUCTION

         Pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1, Crim. Dkt. 60). For the reasons described below, the Court will deny the motion.

         BACKGROUND

         Petitioner Bryan Mark Johnson pleaded guilty on October 19, 2012 to four counts: bank robbery, in violation of 18 U.S.C. § 2113(a); armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g); and possession of a firearm in furtherance of bank robbery, in violation of 18 U.S.C. 924(c)(1)(A). See Plea Agreement, Crim. Dkt. 33; Minute Entry for Change of Plea Hearing, Crim. Dkt. 42. Petitioner was convicted on these counts, and sentenced on April 6, 2012. Judgment, Crim. Dkt. 58. At sentencing, the Court determined that Petitioner had committed at least three prior violent felonies, all for bank robbery in violation of 18 U.S.C. § 2113(a). Petitioner's Br. at 3, Civ. Dkt. 1, Crim. Dkt. 60. The Court therefore found that Petitioner qualified as an Armed Career Criminal under 18 U.S.C. § 924(e), resulting in a guideline range of 188-235 months of imprisonment, plus a consecutive sentence for his conviction under 924(c). Id. at 3-4. Petitioner argues that in light of Johnson v. United States, 135 S.Ct. 2251 (2015) (“Johnson II”), his sentence is illegal and unconstitutional. Id. at 4.

         ANALYSIS

         Under the Armed Career Criminal Act, a defendant convicted of a violation of 18 U.S.C. § 922(g), who has at least three prior convictions for a “violent felony, ” faces a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(1). A “violent felony” is defined as a felony that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [.]

Id.§ 924(e)(2)(B). Section (i) is satisfied where a prior crime of conviction has as an element the use of “‘violent' physical force - ‘that is force capable of causing physical pain or injury.'” See United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson I”) for its interpretation of § 924(e)(2)(B)(i)).

         Under 18 U.S.C. § 924(c), a defendant is subject to “a mandatory consecutive term of imprisonment for using or carrying a firearm during and in relation to a crime of violence.” Watson, 881 F.3d at 784. A “crime of violence” is defined as a felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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). Here again, Section (A) is satisfied if the predicate crime of conviction has as an element the use of “violent physical force” as defined in Johnson I. Watson, 881 F.3d at 784 (finding that the Johnson I standard for § 924(e)(2)(B)(i) “applies ...


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