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United States v. Vidrine

United States District Court, E.D. California

August 31, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
BRIAN VIDRINE, Defendant-Movant.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.

         Brian Vidrine (movant) has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] ECF No. 277. He raises two arguments.

         First, he contends that, in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551(2015) (“Johnson II”), [2] 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).

         In Johnson II, the Supreme Court held that the residual clause[3] 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.

         Second, 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.

         The 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.

         I. Background

         There 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 background:

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 convictions.
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.

         II. Law Applicable to Motions Pursuant to 28 U.S.C. § 2255

         A 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).

         III. Analysis

         A. Whether Armed Bank Robbery Pursuant to § 2113 Remains a Crime of Violence Under 924(c)(3)

         As 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 § 924(c)(3)(B).).

         The 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).

         Section 2113(a) provides:

(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 ...

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