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Davis v. United States

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

October 6, 2016

DION DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA Respondent

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT

         Petitioner Dion Davis pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(d), and brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). This matter is before the court on Mr. Davis' motion to vacate his sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr. Davis' motion.

         I. Background

         Mr. Davis and others planned the robbery of Teachers Credit Union in South Bend, Indiana. He pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(d), and brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). He was sentenced to 64 months imprisonment for the armed robbery and a mandatory 84 months for the brandishing, to be served consecutively. The 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, Mr. Davis' § 924(c) brandishing conviction is invalid and he must be resentenced.

         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 [known as 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).

         Mr. Davis argues that armed bank robbery under § 2113(d) isn't a “crime of violence” as defined under § 924(c)(3) for two reasons: first, armed bank robbery isn't a “crime of violence” under the elements clause, § 924(c)(3)(A); and second, armed bank robbery isn't a “crime of violence” under the force clause, § 924(c)(3)(B) because Johnson's reasoning should invalidate § 924(c)(3)(B). As a result, Mr. Davis would be innocent of violating § 924(c) and not subject to its mandatory seven-year sentence. This court holds that armed bank ...


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