United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a California prisoner proceeding with counsel with a
motion for habeas corpus relief under 28 U.S.C. § 2255.
Movant argues that his conviction and sentence in this action
for using and carrying a firearm during a “crime of
violence” in violation of 18 U.S.C. § 924(c), with
armed bank robbery as the qualifying “crime of
violence, ” must be vacated because, following the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), bank robbery, armed or
otherwise, no longer qualifies as a “crime of
violence” for purposes of § 924(c) . For the
following reasons, the court will recommend that movant's
argument be rejected.
October 3, 1996, movant entered pleas of guilty to count one,
armed bank robbery, and count two, carrying a firearm during
a crime of violence. ECF No. 6 at 1-2; 17 at 3; & 21. On
December 4, 1997, movant was sentenced to 22 months
imprisonment as to count one to be served consecutively to 60
months imprisonment for count two. ECF No. 36 & 37.
is currently in the custody of the California Department of
Corrections and Rehabilitation serving a sentence for crimes
not related to this action. ECF No. 81. On July 30, 2010, a
detainer was placed upon plaintiff pending resolution of a
December 21, 2005 petition alleging movant violated the terms
of supervised release imposed in this action. ECF No. 68
& 81 at 3. That petition still has not been adjudicated.
§ 2113(a), “bank robbery” is defined as
(a) Whoever, 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
Whoever enters or attempts to enter any bank, credit union,
or any savings and loan association, or any building used in
whole or in part as a bank, credit union, or as a savings and
loan association, with intent to commit in such bank, credit
union, or in such savings and loan association, or building,
or part thereof, so used, any felony affecting such bank,
credit union, or such savings and loan association and in
violation of any statute of the United States, or any
Shall be fined under this title or imprisoned not more than
twenty years, or both . . .
applicable version of § 924(c)(1)(A) in effect until
September 29, 1996 reads, in relevant part, as follows:
[A]ny person who, during and in relation to any crime of
violence . . . uses or carries a firearm . . . shall, in
addition to punishment provided for such crime of violence .
. . be sentenced to a term of imprisonment of not less than 5
years. . .
“crime of violence” for purposes of §
924(c)(1) is defined under § 924(c)(3) as a crime which
“(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 ...