United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL 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. 32. The motion is fully briefed.
Having reviewed the filings in this matter, the Court will
deny Petitioner's Motion without a hearing.
September 29, 2004 Petitioner Kurkowski pled guilty to one
count of bank robbery in violation of 18 U.S.C. §
2113(a) (Count One) and one count of brandishing a firearm
during a “crime of violence” in violation of 18
U.S.C. § 924(c)(1) (Count Two). Crim. Dkts. 22, 23. Mr.
Kurkowski's conviction for Count One constituted the
“crime of violence” that served as the basis for
his conviction and sentence to Count Two. See Crim.
Dkt. 18 at 4. At sentencing, the Court calculated the
Defendant's total combined offense level of 23 with a
Criminal History Category of IV. Crim. Dkt. 25 at 1. As such,
Count One carried a guideline range of 70 to 87 months
imprisonment, with a statutory maximum of 240 months.
Id. Count Two carried a mandatory minimum sentence
of 84 months to run consecutive to any other sentence
imposed. Id; see also 18 U.S.C. §
924(c)(1)(A)(ii). On January 4, 2005, the Court sentenced Mr.
Kurkowski to a total of 171 months' imprisonment: 87
months for Count One, and 84 months for Count Two, to be
served consecutively. Crim. Dkts. 25, 26. Until now,
Petitioner Kurkowski had neither appealed nor collaterally
attacked his conviction or sentence. Crim. Dkt. 11 at 11.
now challenges the constitutionality of his sentence based on
the Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015) and Sessions v.
Dimaya, 138 S.Ct. 1208 (2018). In Johnson, the
Supreme Court invalidated a prisoner's sentence under the
Armed Career Criminal Act because the definition of
“violent felony” as a predicate crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” was
unconstitutionally vague. 135 S.Ct. at 2557; 18 U.S.C. §
924(e)(2)(b)(ii). The Court in Dimaya invalidated a
similarly-worded definition of “crime of
violence” in the Immigration and Nationality Act
(“INA”) because it likewise “devolv[ed]
into guesswork and intuition, invited arbitrary enforcement,
and failed to provide fair notice.” Dimaya,
138 S.Ct. at 1223; 18 U.S.C. § 16(b). Petitioner
believes his sentence for Count Two-brandishing a firearm
during a “crime of violence”-should be vacated
because the definition of the predicate “crime of
violence” in § 924(c) is unconstitutional
following Johnson and Dimaya. See Civ. Dkt.
1; 18 U.S.C. § 924(c)(3)(B). For the reasons that follow
the Court will deny Petitioner's motion.
state a cognizable claim under 28 U.S.C. § 2255, a
petitioner must assert that he or she is in custody in
violation of the Constitution or laws of the United States,
that the district court lacked jurisdiction, that the
sentence exceeded the maximum allowed by law, or that the
sentence is otherwise subject to collateral attack. 28 U.S.C.
§ 2255(a). Under § 2255, “a district court
must grant a hearing to determine the validity of a petition
brought under that section, [u]nless the motions and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.” United States
v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). In
determining whether a § 2255 motion requires a hearing,
“[t]he standard essentially is whether the movant has
made specific factual allegations that, if true, state a
claim on which relief could be granted.” United
States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011).
A district court may dismiss a § 2255 motion based on a
facial review of the record “only if the allegations in
the motion, when viewed against the record, do not give rise
to a claim for relief or are palpably incredible or patently
frivolous.” Id. at 1062-63.
Kurkowski argues the Court should vacate his sentence for
Count Two because bank robbery should no longer be considered
a predicate “crime of violence” for purposes of
§ 924(c)(3). That is so, Petitioner believes, because
§ 924(c)(3)(B) suffers from the same unconstitutional
vagueness identified by the Supreme Court in the statutes at
issue in Johnson and Dimaya. Civ. Dkt. 14
at 7. The Government responds that Petitioner's §
2255 claim is both procedurally defective and without merit.
See Civ. Dkt. 11. The Court finds it unnecessary to
address the Government's procedural arguments or to reach
the question of whether § 924(c)(3)(B) is
unconstitutionally vague. Under controlling Ninth Circuit
precedent, Petitioner's bank robbery conviction
constitutes a “crime of violence” predicate
offense for purposes of Count Two. See United States v.
Watson, 881 F.3d 782 (9th Cir.)(per curiam), cert.
denied, 139 S.Ct. 203, (2018). Therefore, the Court will deny
Bank Robbery is a “Crime of Violence” Under 18
U.S.C § 924(c)(1)(A)
Two of Petitioner's indictment, charges him with
brandishing a firearm during a “crime of
violence” in violation of 18 U.S.C. § 924(c)(1).
In turn, § 924(c)(1) defines a “crime of
violence” as a felony that either:
(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 ...