United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
WILLIAM C. LEE, UNITED STATES DISTRICT COURT
R. White (“White”) is currently serving a
sentence for armed bank robbery in violation of 18 U.S.C.
§2113(a) and (d) and for using a firearm during a crime
of violence, in violation of 18 U.S.C. §924(c) He now
moves this Court pursuant to 28 U.S.C. §2255 to vacate
his conviction and sentence under the §924(c) charge in
light of Johnson v. United States, 135 S.Ct. 2551
(2015) [DE 86]. The Government opposes White's petition
asserting that White's 924(c) conviction is unaffected by
the decision in Johnson. For the following reasons,
White's Motion pursuant to 28 U.S.C. §2255 will be
noted above, White was convicted of armed bank robbery and
using a firearm during a crime of violence, (hereinafter,
“the §924(c) conviction”). His motion
challenges only the §924(c) conviction asserting that
armed bank robbery is not a “crime of violence”
and that Johnson, which changed the definition of a
crime of violence as that term is applied for purposes of the
Armed Career Criminal Act (ACCA), 18 U.S.C.
§924(e)(2)(B), determined that armed bank robbery could
not be a predicate offense for a §924(c) conviction
under that statute's residual clause.
Johnson, the Supreme Court held that the
“residual clause” of the ACCA, 18 U.S.C. §
924(e)(2)(B), “denie[d] fair notice to defendants and
invite[d] arbitrary enforcement by judges.” 135 S.Ct.
at 2557. The portion of the ACCA that the Court found
unconstitutionally vague defined “violent felony”
to include an offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” Id. at 2555-56 (emphasis omitted)
(quoting 18 U.S.C. § 924(e)(2)(B)(ii)). By holding the
ACCA residual clause unconstitutionally vague, the Court
narrowed the predicate offenses that could serve to enhance a
felon-in-possession sentence to those that qualify under the
enumerated or force clauses. Thus, the ACCA residual clause
can no longer support a defendant's classification as an
armed career criminal.
argues that the newly recognized right established in
Johnson is applicable not only to the ACCA, but to
§ 924(c) as well, which also contains a residual clause
in its definition of crime of violence, § 924(C)(3)(B).
Thus, the Defendant asserts that Johnson also
invalidates the residual clause in §924(c)(3)(B). The
Court begins its discussion with the statute itself.
924(c)(1)(A) provides specified mandatory minimum sentences
for persons convicted of a “crime of violence”
who use or carry a firearm in furtherance of that crime.
Indeed, as the defendant notes, §924(c)(3) contains both
a “force clause” as well as a “residual
clause” and defines “crime of violence” as
an offense that is a felony and-
(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.
generally refer to the ‘(A)' clause of section
924(c)(3) as the “force clause” and to the
‘(B)' clause of section 924(c)(3) as the
problem for White in the present instance is that he is not a
proper test case for the Court to determine whether
Johnson invalidates §924(c)(3)(B). Indeed, this
Court need not assess the validity of §924(c)(3)(B) in
light of Johnson because, even assuming
Johnson would invalidate it, this Circuit clearly
defines “bank robbery” as qualifying under the
law defines bank robbery as the taking “by force and
violence, or by intimidation, ” of bank property
“from the person or presence of another.” 18
U.S.C. §2113(a). Moreover, the Seventh Circuit has
defined intimidation as the threatened use of force.
United States v. Jones,932 F.2d 624, 625
(7th Cir. 1991). Thus, because the “force
clause” encompasses crimes that have “as an
element the use, attempted use, or threatened use of physical
force against the person or property of another, ” 18
U.S.C. §924(c)(3)(A), the classification of federal bank
robbery as a crime of violence is unaffected by
Johnson even if Johnson is ultimately found
to invalidate the residual clause of
§924(c)(3)(B). Moreover, in the last three weeks, the
Seventh Circuit has expressly confirmed this conclusion. In
United States v. Armour, 2016 WL 6440383 at *2 (7th
Cir. November 1, 2016), the court held that the
Johnson decision was inapplicable to a defendant
convicted under 18 U.S.C. § 924(c)(1)(A), “because
the federal crime ...