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McFarland v. United States

United States District Court, C.D. California

March 1, 2017

Donte Toyron McFarland
v.
United States of America v.

          PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES -- GENERAL

         PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY [filed 9/23/16; Docket No. 1]

         On September 23, 2016, Petitioner Donte McFarland (“McFarland”) filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“2255 Motion”). On October 19, 2016, Respondent United States of America (the “Government”) filed its Opposition. On October 31, 2016, McFarland filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the matter appropriate for submission on the papers without oral argument. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:

         I. Factual and Procedural Background

         A. McFarland's Conviction and Sentence

         On August 29, 2000, McFarland committed an armed robbery of the Los Padres Bank, an FDIC-insured bank, located in Pismo Beach, California. During the robbery, McFarland, who was wearing clothing identifying him as “Security, ” grabbed a customer by the neck, pointed his handgun at her head, and ordered her to lay down. McFarland then pointed his handgun at a bank teller while he removed cash from the bank teller's drawer. McFarland and his co-defendants stole approximately $100, 975 from Los Padres Bank.

         On September 22, 2000, McFarland committed an attempted armed robbery of the Los Padres Bank located in Atascadero, California. During the attempted robbery, McFarland, who was wearing clothing marked with “Federal Express” emblems, pointed his handgun at a bank teller's face and ordered the bank teller to lay on the floor.

         On October 6, 2000, a federal grand jury indicted McFarland and his co-defendants, charging McFarland with five counts: (1) conspiring to commit armed bank robbery in violation of 18 U.S.C. § 371; (2) armed bank robbery, in violation of 18 U.S.C § 2113(a), (d); (3) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); (4) attempted armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d); and (5) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). On May 29, 2001, McFarland pled guilty to count four - attempted armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) - and count five - using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). On June 1, 2001, after a three day trial, a jury found McFarland guilty of the remaining counts: (1) conspiring to commit armed bank robbery in violation of 18 U.S.C. § 371; (2) armed bank robbery in violation of 18 U.S.C § 2113(a), (d); and (3) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).

         On September 17, 2001, McFarland was sentenced to 494 months under the then-mandatory Sentencing Guidelines - 60 months on Count 1 (the conspiracy count); 110 months on Counts 2 and 4 (the bank robbery counts), with Counts 1, 2, and 4 to run concurrently to each other; plus a mandatory 84 months on Count 3 (one of the Section 924(c) counts) and a mandatory consecutive 300 months on Count 5 (the other Section 924(c) count). The Court also imposed a 5 year term of supervised release, a $500 special assessment, and restitution in the amount of $100, 975.00.

         B. McFarland's Appeal and First Section 2255 Motion

         On September 21, 2001, McFarland filed a Notice of Appeal. On November 18, 2003, the Ninth Circuit affirmed McFarland's conviction and sentence. United States v. Wilson, 86 F. App'x 232 (9th Cir. 2003). On March 22, 2004, the Supreme Court denied McFarland's Petition for a Writ of Certiorari. McFarland v. United States, 541 U.S. 950 (2004). On September 27, 2004, McFarland filed his first motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. On March 31, 2005, the Court denied McFarland's motion to vacate, set aside, or correct the conviction and sentence.

         C. Johnson II, Welch, and Dimaya

         On June 26, 2015, the Supreme Court held in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), that the so-called “residual clause” definition of a “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii) -- the clause that defines a “violent felony” to include any felony that “[like] burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another” -- is void for vagueness. On April 18, 2016, the Supreme Court held in Welch v. United States, 136 S.Ct. 1257 (2016), that Johnson II announced a new substantive rule of constitutional law that applies retroactively on collateral review to ACCA-enhanced sentences. Id. at 1264-68. In neither decision did the Court address whether Johnson II applies to other sentence enhancement provisions containing residual clauses, such as 18 U.S.C. § 924(c)(3), which defines a “crime of violence” as any felony 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.” In Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S.Ct. 31 (2016), the Ninth Circuit extended Johnson II to the materially identical residual clause definition of a “crime of violence” in 18 U.S.C. § 16(b). However, the Ninth Circuit did not address whether Johnson II also extended to Section 924(c)(3).

         D. McFarland's Second Section 2255 Motion

         On May 11, 2016, McFarland filed his second 2255 Motion. At the same time, McFarland filed a notice of filing of second or successive petition with the Ninth Circuit, requesting permission to file this 2255 Motion. On September 19, 2016, the Ninth Circuit authorized McFarland to file this 2255 Motion.

         In this 2255 Motion, McFarland argues that his sentences under § 924(c) on Counts three (84 months) and five (300 months) should be set aside or vacated because, pursuant to Johnson II, neither his conviction for attempted armed bank robbery nor for armed bank robbery is a “crime of violence.” Section 924(c) authorizes the imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a “crime of violence.” 18 U.S.C. § 924(c)(1)(A), (B). The term “crime of violence” is defined 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” (the “elements” or “force” 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 “residual” clause). 18 U.S.C. § 924(c)(3).

         McFarland argues that Johnson II invalidated Section 924(c)(3)'s residual clause and, therefore, his armed bank robbery and attempted armed robbery convictions cannot qualify as crimes of violence under that prong. He also contends that ยง 924(c)(3)'s elements clause does not categorically cover his convictions because one could theoretically be convicted of armed bank ...


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