United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN JUDGE
Defendant, Dante Powell, is serving a sentence for aggravated
bank robbery, 18 U.S.C. § 2113(a) and (d), and using a
firearm during and in relation to a crime of violence, 18
U.S.C. § 924(c). The Defendant now seeks to vacate his
conviction and sentence under § 924(c) [Motion to Vacate
Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 42]. His
Motion is based on the Supreme Court's recent decision in
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Defendant maintains that armed bank robbery can no longer be
a predicate offense for a § 924(c) conviction.
Defendant filed his Motion on June 24, 2016-within the
one-year period set forth in § 2255(f)(3), based on the
Supreme Court's June 26, 2015 decision m
Johnson, which is retroactively applicable to cases on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1265 (2016) (“Johnson is ... a
substantive decision and so has retroactive effect... in
cases on collateral review."); Price v. United
States, 795 F.3d 731, 734 (7th Cir. 2015)
(Johnson announced a new substantive rule which
applies retroactively on collateral review). The Court treats
the Motion as timely filed.
2255 allows a defendant to move to vacate, set aside, or
correct a sentence that was imposed in violation of the
Constitution of the United States. See 28 U.S.C.
§ 2255(a). Relief under § 2255 is "available
only in extraordinary situations, " requiring an error
of constitutional or jurisdictional magnitude or a
fundamental defect that resulted in a complete miscarriage of
justice. Blake v. United States, 723 F.3d 870,
879-80 (7th Cir. 2013).
sustain a conviction under 18 U.S.C. § 924(c)(3), the
government must prove that the defendant (1) used or carried
a firearm and (2) did so during and in relation to a
"crime of violence." Under § 924(c)(3), the
term "crime of violence" is "an offense that
is 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" 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." 18 U.S.C. §
924(c)(3)(A)-(B). Subsection (A) is known as the elements
clause, and subsection (B) is referred to as the residual
of the Indictment identifies the predicate crime of violence
as armed bank robbery, in violation of 18 U.S.C. §
2113(a) and (d). A defendant commits bank robbery if he:
by force and violence, or by intimidation, takes, or attempts
to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or
any other thing of value belonging to, or in the care,
custody, control, management, or possession of, any bank,
credit union, or any savings and loan association.
18 U.S.C. § 2113(a). The offense can be enhanced and
charged under subsection (d) if, while committing or
attempting to commit bank robbery, the defendant
"assaults any person, or puts in jeopardy the life of
any person by the use of a dangerous weapon or device."
Id. § 2113(d).
already stated, the Defendant's Motion invokes the
Supreme Court's decision in Johnson, which held
that the residual clause of the definition of a "violent
felony" in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B), is unconstitutionally vague. 135
S.Ct. at 2557 (invalidating the phrase "or otherwise
involves conduct that presents a serious potential risk of
physical injury to another"). The Defendant was not
sentenced under the ACCA, but he claims that armed bank
robbery no longer qualifies as a crime of violence under
§ 924(c)(3) based on Johnson's reasoning.
His argument is two-part.
part, he argues that the holding in Johnson
necessarily rendered the residual clause of §
924(c)(3)(B) unconstitutionally vague. The Seventh Circuit
has applied Johnson to the definition of "crime
of violence" in 18 U.S.C. § 16(b), which is nearly
identical to the language in § 924(c)(3)(B). See
United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir.
2015). Accordingly, it is plausible that the reasoning of
Johnson applies to the residual clause in §
924(c)(3)(B) and renders it unconstitutionally vague.
However, the Court finds that it is not necessary to decide
whether the residual clause of § 924(c) is void
under Johnson, because bank robbery under §
2113(a) and (d) is a crime of violence under §
924(c)'s elements clause. See United States v.
Armour, ___ F.3d ___, 2016 WL 6440383, at *4-5 (7th Cir.
Nov. 1, 2016).
brings the Court to the second part of the Defendant's
argument-that neither § 2113(a) nor (d) has as an
element the use, attempted use, or threatened use of force.
The Defendant insists that armed bank robbery does not meet
the definition because it can be committed through the use of
non-forceful means. For example, robbery under § 2113(a)
can be accomplished through intimidation, which the Defendant
argues does not qualify as force or violence. The Defendant
also submits that placing someone in fear of "bodily
harm" does not require "violent force." For
example, a defendant could place another in fear of bodily
harm by threatening to poison that person, releasing
hazardous chemicals on that person, or locking that person up
in a room without food or water. The Defendant argues that
none of these methods would require violent force. Finally,
he asserts that even armed bank robbery under subsection (d)
can be accomplished through means that do not satisfy the
elements clause of § 924(c).
Supreme Court has defined the phrase "physical
force" to require no more than "force capable of
causing physical pain or injury to another person."
Johnson v. United States, 559 U.S. 133, 140
(2010) (citing Flores v. Ashcrofi, 350
F.3d 666, 672 (7th Cir. 2003)); see also United States v.
Duncan, 833 F.3d 751, 754 (7th Cir. 2016). In
Armour, the Seventh Circuit rejected the
defendant's argument that robbery by intimidation under
§ 2113(a) does not satisfy the elements clause of §
924(c), holding that, even presuming the conviction rested on
the least serious acts that could satisfy the statute,
"bank robbery under § 2113(a) inherently contains a
threat of violent physical force." 2016 WL 6440383, at
*4 ("A bank employee can reasonably believe that a
robber's demands for money to which he is not entitled
will be met with violent force of the type satisfying"
the Supreme Court's definition). The Supreme Court has
also held that "the act of employing poison knowingly as
a device to cause physical harm" is a use of force.
United States v. Castleman, 134 S.Ct. 1405, 1415
(2014) ((interpreting 18 U.S.C. 922(g)(9)). For similar
reasons, the Defendant's remaining proposed scenarios,
such as releasing hazardous chemicals, or locking a person up
in a room without food or water, would satisfy the use of
force standard. See United States v. Waters, 823
F.3d 1062, 1066 (7th Cir. 2016) (reasoning that
"withholding medicine causes physical harm, albeit
indirectly, and thus qualifies as the use of force under
also forecloses the Defendant's argument that subsection
(d) bank robbery can be satisfied without the strong physical
force required by the 2010 Johnson case.
See 2016 WL 6440283, at *4 (holding that the
"victim's fear of bodily harm is necessarily fear of
violent physical force that is inherent in armed bank
robbery"). This is so because the actions ...