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United States v. Scott

United States District Court, E.D. California

August 31, 2017

UNITED STATES OF AMERICA, Respondent,
v.
ELMAR SCOTT, Movant.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Movant 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.

         II. BACKGROUND

         On 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.

         Movant 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.

         III. STATUTES

         Under § 2113(a), “bank robbery” is defined as follows:

(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 association; or
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 larceny--
Shall be fined under this title or imprisoned not more than twenty years, or both . . .

         The 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. . .

         A “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 ...


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