United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
Vidrine (movant) has filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. §
2255. ECF No. 277. He raises two arguments.
he contends that, in light of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct.
2551(2015) (“Johnson II”),
armed bank robbery in violation of 18 U.S.C. § 2113(a)
and (d) is no longer a “crime of violence” within
the meaning of 18 U.S.C. § 924(c)(3).
Johnson II, the Supreme Court held that the residual
clause of the Armed Career Criminal Act
(“ACCA”) - 18 U.S.C. § 924(e)(2)(B) - was
void for vagueness. Johnson, 135 S.Ct. at 2554.
Movant argues that the holding in Johnson II also
renders the residual clause contained in 18 U.S.C. §
924(c)(3)(B) unconstitutionally vague and, thus, armed bank
robbery in violation of 18 U.S.C. §§ 2113(a), (d)
cannot qualify as a “crime of violence” under
that clause. He also argues that an armed bank robbery does
not qualify as a “crime of violence” under the
“force clause” of 18 U.S.C. § 924(c)(3)(A)
because it does not require the intentional use or threat of
violent physical force.
movant argues that his prior conviction for California
robbery under Cal. Penal Code § 211 is no longer a
“crime of violence” within the meaning of USSG
§ 4B1.2(a). As a consequence, he contends that the
sentencing court's determination that he was a
“career offender” within the meaning of the
sentencing guidelines cannot stand.
government has filed an opposition to the motion (ECF No.
283) and movant has submitted a reply (ECF No. 284). The
court invited a surreply from the government on an issue
raised for the first time in movant's reply (ECF No. 285)
and the government availed itself of that opportunity (ECF
No. 286). The court, for the reasons stated hereafter,
recommends that movant's motion be denied.
is no dispute concerning the procedural background of this
case. Accordingly, the court finds it appropriate to
reproduce the government's concise summation of that
Before the trial in this case, Vidrine pleaded guilty to
Count 1 of the Third Superseding Indictment, which charged
him with Escape, in violation of 18 U.S.C. § 751.
See ECF 49; PSR ¶1.
After the trial, Vidrine was found guilty on three counts of
Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a),
-(d) (collectively referred to as “Section 2113”)
(Counts 2, 4, and 6) and two counts of Using a Firearm During
and in Relation to a Crime of Violence, in violation of 18
U.S.C. § 924(c) (Counts 5 and 7). See ECF 142,
144; PSR ¶1. The “crimes of violence”
underlying Vidrine's Section 924(c) convictions were two
of the bank robberies at issue in his Section 2113
In October 17, 1997, the district court imposed on Vidrine a
468-month term of imprisonment, composed as follows: a
60-month term on Count 1, the Escape offense; a concurrent
168-month term on Counts 2, 4 and 6, the Armed Bank Robbery
offenses; a consecutive-to-all 60-month term on Count 5, the
first Section 924(c) offense; and a consecutive-to-all
240-month term on Count 7, the second Section 924(c) offense.
See ECF 152, 156.
In imposing the 168-month term on Counts 2, 4, and 6, the
district court found that Vidrine was a “career
offender” within the meaning of the U.S. Sentencing
Guidelines, adopting the finding of the presentence report
that these Armed Bank Robbery offenses were “crimes of
violence” and that he had at least two prior
convictions that counted as “crimes of violence,
” as needed to support a “career offender”
enhancement. See PSR ¶37. Specifically, the
district court found that the Armed Bank Robbery offenses
were “crimes of violence, ” and that
Vidrine's 1984 California conviction for robbery
(Sacramento Sup. Ct. Case 68742), in violation of Section 211
of the California Penal Code, and his 1986 federal conviction
for savings and loan robbery (E.D. Cal. Case 2:86-cr-0170),
in violation of Section 2113, qualified as “crimes of
violence” under the career offender provision.
See PSR ¶¶ 37, 49, & 52.
Application of the career offender enhancement meant that
(with respect to Counts 2, 4, and 6) Vidrine might have faced
a Guidelines range of 262-327 months (offense level 34,
criminal history category VI). However, finding that a
category VI “significantly over-represent[ed] the
seriousness of this defendant's prior arrest history,
” the district court departed to category V and offense
level of 30. SOR at 5. Thus, the total effect of the career
offender enhancement was to move the Guidelines range (with
respect to Counts 2, 4, and 6) from 135-168 months to 151-188
months. See PSR ¶¶39, 59.
ECF No. 283 at 10.
Law Applicable to Motions Pursuant to 28 U.S.C. §
federal prisoner making a collateral attack against the
validity of his or her conviction or sentence must do so by
way of a motion to vacate, set aside or correct the sentence
pursuant to 28 U.S.C. § 2255, filed in the court which
imposed sentence. United States v. Monreal, 301 F.3d
1127, 1130 (9th Cir. 2002). Section 2255 authorizes the court
to grant relief if it concludes “that the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a). Relief
is warranted only where a petitioner has shown “a
fundamental defect which inherently results in a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 346 (1974); see also United
States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).
Whether Armed Bank Robbery Pursuant to § 2113 Remains a
Crime of Violence Under 924(c)(3)
noted above, movant argues that his sentences under
§924(c) must be vacated because armed bank robbery as
defined in § 2113 does not, after Johnson II,
qualify as a crime of violence under either the force clause
of § 924(c)(3)(A) or the residual clause of §
924(c)(3)(B) - which movant now argues is void for vagueness.
The court notes, however, that it need not decide whether
Johnson II renders §924(c)'s residual
clause void for vagueness if it concludes that armed bank
robbery still falls within the section's force clause.
See United States v. Bailey, 2016 WL 33812182016,
U.S. Dist. LEXIS 75556 at *7 n. 2 (C.D. Cal. June 8, 2016)
(collecting cases holding that, where a court concludes that
an act is a “crime of violence” within §
924(c)(3)(A), it need not consider the effect of Johnson
II on the residual clause contained in §
court applies the “categorical approach” outlined
in Taylor v. United States, 495 U.S. 575 (1990) in
determining “whether a particular conviction satisfies
the specified elements of a sentence-enhancement
provision.” United States v. Piccolo, 441 F.3d
1084, 1086 (9th Cir. 2006). In applying the categorical
approach, the court does not “examine the facts
underlying the prior offense, but look[s] only to the fact of
conviction and the statutory definition of the prior
offense.” Id. (internal quotations and
citations omitted). The categorical offense is applied
“without regard to whether the given offense is a prior
offense or the offense of conviction.” Id.
There are three steps in applying the categorical approach:
(1) first, the court should compare whether the statute of
conviction is a categorical match to the generic predicate
offense or, put another way, whether it criminalizes only as
much or less conduct than the generic offense; (2) if the
statute criminalizes more conduct than the generic offense it
is “overbroad” and the court must determine
whether the statute is “divisible” or
“indivisible”; (3) finally, if the statute is
“overbroad” and “divisible” the court
may turn to a “modified categorical approach” and
examine documents from the record of conviction to determine
what elements of the divisible statute the movant was
convicted of violating. See Lopez-Valencia v. Lynch,
798 F.3d 863, 867-68 (9th Cir. 2015). Here, the court must
compare the elements of armed bank robbery pursuant to §
2113(a)-(d) with the definition of ‘crime of
violence' contained in § 924(c)(3).
(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 ...