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Washington v. United States

United States District Court, N.D. Indiana, South Bend Division

October 6, 2016

TIRENO WASHINGTON, RICO TORIANO KIMBROUGH, Petitioners,
v.
UNITED STATES OF AMERICA Respondent Nos. 3:16-cv-405, 3:16-cv-406

          OPINION AND ORDER

          Robert L. Miller, Jr., Judge

         Tireno Washington and Rico Toriano Kimbrough pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(d), and using a firearm during a crime of violence, 18 U.S.C. § 924(c). This matter is before the court on their respective motions to vacate their sentences under 28 U.S.C. § 2255. Because the motions, issues, relevant facts, and rationales are identical, the court addresses both motions with a single opinion and order. For the reasons that follow, the court denies the motions of Messrs. Washington and Kimbrough.

         I. Background

         Mr. Washington, Mr. Kimbrough, and others planned the robbery of Elcose Federal Credit Union in Elkhart, Indiana. The two pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(d), and possession of a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). Each of their sentences included a mandatory 60 month imprisonment for the possession conviction and required that it be served consecutively to their sentences for the robbery convictions. Today's issue is whether, after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015), armed bank robbery is a “crime of violence” as defined under § 924(c)(3). If not, then their § 924(c) possession convictions are invalid.

         Guilt under § 2113(d) requires committing a bank robbery “by force and violence, or by intimidation, ” § 2113(a), and, while doing so, “assault[ing] any person, or put[ting] in jeopardy the life of any person by the use of a dangerous weapon or device.” § 2113(d). Guilt under § 924(c) requires that “during and in relation to any crime of violence, ” the defendant “use[ ] or carr[y] a firearm” or, “in furtherance of any such crime, possess[ ] a firearm.” § 924(c)(1)(A). Last, “crime of violence” for purposes of § 924(c) 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 [the “elements clause”], 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 [the “force clause”].

§ 924(c)(3).

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year minimum sentence on any defendant with three prior “violent felony” convictions. The statute defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”];

18 U.S.C. § 924(e)(2)(B). Johnson held that the residual clause of the ACCA is so vague that it violates the Due Process Clause, U.S. Const. amend. V. The Supreme Court later decided that Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Messrs. Washington and Kimbrough argue that armed bank robbery under § 2113(d) isn't a “crime of violence” as defined under § 924(c)(3). They argue: first, that armed bank robbery isn't a “crime of violence” under the elements clause, § 924(c)(3)(A); second, that armed bank robbery isn't a “crime of violence” under the force clause, § 924(c)(3)(B), because Johnson applies to § 924(c)(3)(B) as well as the ACCA; and third, as a result, both petitioners are innocent of violating § 924(c) and not subject to its mandatory five-year sentence. This court holds that armed ...


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