United States District Court, C.D. California, Western Division
CHARLES E. CAVER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J. Hatter, Jr. Senior United States District Judge
JS-6 The Court has considered Petitioner Charles E.
Caver's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 or, in the alternative,
request for a certificate of appealability as to his claim
pursuant to 28 U.S.C. § 2253(c)(2), together with the
moving and opposing papers.
challenges his sentence under 18 U.S.C. § 924(c), which
is predicated on armed bank robbery, in violation of 18
U.S.C. § 2113(a), (d), and (e). Petitioner, further,
challenges his sentence to the extent the sentence is based
on U.S.S.G. § 4B1.1.
924(c) defines “crime of violence” under §
924(c)(3)(A) [the “Force Clause”] and §
924(c)(3)(B) [the “Residual Clause”]. This Court
held that the Residual Clause is unconstitutionally vague,
and that certain convictions - convictions that, under the
categorical approach, see Taylor v. United States,
495 U.S. 575 (1990), fall outside the Force Clause because
the statutory elements of the conviction include conduct
falling outside the Force Clause's definition of a
“crime of violence” - must be vacated. See
Juan Becerra-Perez v. United States, No.
2:16-cv-07046-TJH (C.D. Cal. Feb. 15, 2017). The Force Clause
defines a “crime of violence” as a felony that
“has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another[.]” § 924(c)(3)(A).
2113 (a), (d), and (e) are crimes of violence under the Force
Clause defined in § 924(c)(3)(A). United States v.
Wright, 215 F.3d 1020, 1028 (9th Cir. 2000). Since
Wright, the Ninth Circuit has reaffirmed that armed
bank robbery qualifies as a crime of violence under the Force
Clause. United States v. Pritchard, No. 15-50278,
2017 WL 2219005, at *1 (9th Cir. May 18, 2017). Subsection
(a) provides for a felony conviction for bank robberies and
incidental crimes committed “by force and violence, or
by intimidation.” 18 U.S.C. § 2113(a)
(emphasis added). The Ninth Circuit has defined intimidation
under § 2113 to mean “wilfully to take, or attempt
to take, in such a way that would put an ordinary, reasonable
person in fear of bodily harm, ” which comports with
the requirement of a “threatened use of physical
force” contained in the Force Clause. United States
v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990).
subsection (d) includes “putting in jeopardy the life
of any person by the use of a dangerous weapon or
device.” 18 U.S.C. § 2113(d). As such, even the
most innocent conduct penalized under this section would
qualify as a crime of violence. See United States v.
Watson, No. 14-00751 01 DKW, 2016 WL 866298, at *7 (D.
Haw. Mar. 2, 2016). Therefore, both subsections (a) and (d)
fall within the definition of a crime of violence under 18
U.S.C. § 924(c)(3)(A). Watson, 2016 WL 866298,
at *7. This conclusion is, further, supported by decisions in
this Circuit reaching the same result. See, e.g.,
McFarland v. United States, No. CV 16-7166- JFW, 2017 WL
810267, at *4 (C.D. Cal. Mar. 1, 2017); United States v.
Salinas, No. 1:08 CR 0338 LJO SKO, 2017 WL 2671059, at
*7 (E.D. Cal. June 21, 2017).
Section 2113 (e) is a crime of violence under the Force
Clause defined in § 924(c)(3)(A). Section 2113 (e)
punishes perpetrators who, inter alia, “in
avoiding or attempting to avoid apprehension for” the
violation of § 2113 “or in freeing himself or
attempting to free himself from arrest or confinement for
such offense, ” inter alia, “kills any
person[.]” As courts have remarked, determining whether
§ 2113 (e) categorically constitutes a crime of violence
is not altogether straightforward. See Holder v. United
States, 836 F.3d 891, 892-94 (8th Cir. 2016) (Melloy,
J., dissenting); Allen v. United States, 836 F.3d
894, 895-96 (8th Cir. 2016); United States v.
McDuffy, 194 F.Supp.3d 1054, 1061-63 (D. Nev. 2016).
the Court notes that “physical force” within the
meaning of the Force Clause means “force capable of
causing physical pain or injury to another person.”
United States v. Dominguez Maroyoqui, 748 F.3d 918,
921 (9th Cir. 2014). The force required to “kill any
person, ” see § 2113(e), necessarily
requires force capable of causing physical pain or injury to
another person. United States v. Dominguez
Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014).
Consequently, § 2113(e) constitutes a crime of violence
under the Force Clause.
March 6, 2017, the Supreme Court issued its decision in
Beckles v. United States, 137 S.Ct. 886 (2017),
holding that the advisory Sentencing Guidelines are not
subject to a due process vagueness challenge. 137 S.Ct. at
895. The Court held that unlike the Armed Career Criminal
Act, which was subject to the Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), the
advisory Guidelines “merely guide the exercise of a
court's discretion in choosing an appropriate sentence
within the statutory range.” Beckles, 137
S.Ct. at 892. Indeed, on this basis, the Supreme Court held
that § 4B1.2(a)(2) specifically was not void for
vagueness. Beckles, 137 S.Ct. at 895. As a result,
to the extent Petitioner challenges his sentence under §
4B1.2(a)(2), Petitioner's motion is foreclosed by
district court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Such a showing requires the petitioner to
“demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues [in
a different manner]; or that the questions are adequate to
deserve encouragement to proceed further.”
Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000) (alterations in original, emphasis omitted). For the
reasons discussed above, Petitioner has made such a showing
of the denial of a constitutional right with respect to his
sentence pursuant to 18 U.S.C. § 2113(e) and 18 U.S.C.
It is Ordered that the motion to vacate
Petitioner's sentence under 18 U.S.C. § 924(c) and
§ 4B1.2(a)(2) be, and hereby is, Denied.
Further Ordered that Petitioner's request for a
certificate of appealability pursuant to 28 U.S.C. §
2253(c)(2) be, and hereby is, Granted with respect to his