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United States v. Key

United States District Court, N.D. Indiana, Fort Wayne Division

November 30, 2016

UNITED STATES OF AMERICA
v.
BRANDON KEY

          OPINION AND ORDER

          WILLIAM C. LEE, UNITED STATES DISTRICT COURT

         Brandon Key (“Key”) 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 Key's petition asserting that Key's 924(c) conviction is unaffected by the decision in Johnson. For the following reasons, Key's Motion pursuant to 28 U.S.C. §2255 will be DENIED.

         DISCUSSION

         As noted above, Key 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.

         In 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.

         Defendant 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.

         Section 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 another, 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.

         Courts 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 “residual clause.”

         The problem for Key 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 “force clause.”

         Federal 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).[1] 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 ...


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