United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
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.
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.
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)).
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
(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 ...