United States District Court, D. Idaho
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
before the Court is Petitioner Shawn Smith's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255. Civ. Dkt. 1. The motion is fully briefed and at
issue. Having reviewed the filings in this matter, the Court
will deny Petitioner's Motion without a hearing.
March 24, 2015 Petitioner Smith pled guilty to one count of
armed bank robbery in violation of 18 U.S.C. § 2113(a)
and (d) (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 Four). Crim. Dkts. 22, 26. Mr.
Smith's conviction for Count One, bank robbery,
constituted the “crime of violence” that served
as the basis for his conviction and sentence under Count
Four. See id.
Plea Agreement, Mr. Smith agreed that the government could
prove the elements of Armed Bank Robbery as alleged in Count
One; and Brandishing of a Firearm During and in Relation to a
Crime of Violence as alleged in Count Four beyond a
reasonable doubt. Crim. Dkt. 22, 26. The Plea Agreement
detailed that armed bank robbery was the “crime of
violence” underlying the § 924(c) charge as
alleged in Count Four. Id. The defendant did not
object to the presentence report's findings that armed
bank robbery was a crime of violence for purposes of 18
U.S.C. § 924(c). Crim. Dkt. 33-1. On June 9, 2015, the
Court sentenced the Mr. Smith to 35 months on count one for
armed bank robbery and 84 months consecutive on count four
for the § 924(c) conviction for a total term of 119
months of incarceration. Crim. Dkt. 40. The sentence was
below the advisory guideline range. Crim. Dkt. 41. The
defendant did not appeal his convictions or sentence. His
convictions became final on June 23, 2015. On June 22, 2016,
the defendant moved to vacate his sentence under 28 U.S.C.
§ 2255. Civ. Dkt. 1.
now challenges the constitutionality of his sentence based on
the Supreme Court's recent 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 (“ACCA”) 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 Four-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.
Smith argues the Court should vacate his conviction and
sentence for Count Four because bank robbery should not 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. See Civ. Dkts. 1, 9. The Government
responds that Petitioner's § 2255 claim is both
procedurally defective and without merit. See Civ.
Dkt. 7. 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 Count One conviction for bank robbery under
§ 2113(a) counts as “crime of violence”
predicate offense for purposes of his Count Four conviction
under § 924(c)(3)(A). 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)
Four 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).
The statute 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 ...