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United States v. Robinson

United States District Court, E.D. California

October 10, 2019

UNITED STATES, Plaintiff/Respondent,
v.
KEITH ALAN ROBINSON, Defendant/Movant.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Movant is a federal prisoner proceeding with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his 1995 sentence for convictions involving armed bank robberies. He argues that the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson) renders his designation as a career offender invalid and requires that his convictions on counts for aiding and abetting the use of firearms during a “crime of violence” be vacated. After considering the briefs and supplemental authority provided by the parties, for the reasons set forth below, this court recommends the motion be denied.

         BACKGROUND

         After a jury trial, movant was convicted on the following fifteen counts:

• Count 1 - Conspiracy to Commit Armed Bank Robberies in violation of 18 U.S.C. § 371 and § 2113(a) and (d).
• Counts 2, 4, 6, 8, 12, 13 and 14 - Aiding and Abetting Armed Bank Robberies in violation of 18 U.S.C. § 2 and § 2113(a) and (d).
• Counts 3, 5, 7, 9, and 15 - Aiding and Abetting Use of a Firearm during “crimes of violence” - the armed bank robberies - in violation of 18 U.S.C. § 924(c)(1) and § 2.
• Count 10 - Aiding and Abetting Obstructing Justice by Retaliation in violation of 18 U.S.C. § 1512(a)(2) and § 2.
• Count 11 - Aiding and Abetting the Use of Fire or Explosive to Commit a Felony in violation of 18 U.S.C. § 844(h)(1) and § 2

         In the Presentence Investigation Report (“PSR”), movant was deemed a “career offender” under § 4B1.1 of the United States Sentencing Guidelines (“USSG”).[1] That designation was based on movant's March 1983 conviction on one count of federal bank robbery and an April 1987 conviction of attempted California robbery. The probation officer concluded that those prior convictions were “crimes of violence, Armed Bank Robberies.” The effect of the career offender designation was to place movant in Criminal History Category VI rather than V. The PSR determined that based on the offense level of 35 and the Criminal History Category of VI, the Guideline range for imprisonment was 292-365 months on counts 1, 2, 4, 6, 8, 10, 12, 13 and 14. According to movant, had he not been deemed a career offender, his Guideline range would have been reduced to 262-327 months.

         With respect to movant's convictions under 18 U.S.C. § 924(c)(1), the court imposed consecutive sentences of 60 months on count 3 and 240 months each on counts 5, 7, 9, and 15. Had movant not been convicted of these counts, his sentence would have been reduced by 1, 020 months. Finally, movant received a 60-month sentence on count 11.

         MOTION TO VACATE[2]

         Movant argues that the Court's decision in Johnson renders the residual clauses in the definitions of “crime of violence” found in USSG § 4B1.2 and 18 U.S.C. § 924(c)(3) void for vagueness. Movant further argues that he does not otherwise qualify as a career offender under § 4B1.1 and his crimes do not meet the standards for crimes of violence under the elements clause of § 924(c)(3)(A).[3]

         The government counters that movant's challenge to § 4B1.2 is barred by the statute of limitations and that Johnson does not require a finding that either § 4B1.2 or § 924(c)(3) is vague. The government further argues that even if the residual clause of § 924(c)(3)(B) is vague, movant's crimes nonetheless qualify as crimes of violence under the elements clause of § 924(c)(3)(A).

         I. Standards for Motions Pursuant to 28 U.S.C. § 2255

         A federal prisoner making a collateral attack against the validity of their 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). Under § 2255, the sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. Davis v. United States, 417 U.S. 333, 344-45 (1974); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, the prisoner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.”). Relief is warranted only where a petitioner has shown “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346; see also United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).

         II. Johnson and its Progeny

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the U.S. Supreme Court considered a constitutional challenge to the Armed Career Criminals Act. The provision at issue, 18 U.S.C. § 924(e)(1), requires sentences of 15-years-to-life for convictions for felon-in-possession where the defendant had been convicted of three or more prior “violent felonies.” That section defined violent felonies in three ways. First, the felony could have as an “element” the “use, attempted use, or threatened us of physical force against the person of another.” 18 U.S.C. § 924(e)(1)(B)(i). Second, the felony could be included in a list of four classes of felonies. Id. ยง 924(e)(1)(B)(ii). ...


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