United States District Court, E.D. Tennessee, Chattanooga
R. McDONOUGH UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 42]. He bases his request on Johnson v. United
States, 135 S.Ct. 2551 (2015), in which the Supreme
Court held that the residual clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
was unconstitutionally vague [Id.]. The United
States responded in opposition on June 15, 2016 [Doc. 44].
For the following reasons, the petition will be
DENIED and DISMISSED WITH
2013, Petitioner pled guilty to committing bank robbery by
force or intimidation, in violation of 18 U.S.C. §
2113(a), (d), and brandishing a firearm during and in
relation to that crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) [Docs. 26-28, 38]. The Court
sentenced Petitioner to an aggregate term of 130 months'
incarceration-46 months' incarceration for the bank
robbery followed by 84 months' incarceration for the
§ 924(c) offense [Doc. 38]. Petitioner did not file a
direct appeal of his conviction or sentence. In May of 2016,
Petitioner filed the instant challenge to his conviction
under § 924(c) based on the Johnson decision
argues that the Johnson decision invalidated the
residual clause in § 924(c)(3)(B)'s definition of
crime of violence and that the absence of that provision
requires vacatur of his conviction under § 924(c)(1)(A).
The argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
ACCA, § 924(c)(3)(B)'s definition of crime of
violence remains unaffected.See United States v.
Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016)
(recognizing at least four “significant
differences” between the residual clause in §
924(c)(3)(B) and the ACCA's residual clause and noting
“the argument that Johnson effectively
invalidated [the former] is . . . without merit”).
even if Johnson's reasoning could be used to
invalidate § 924(c)(3)(B)'s residual clause,
Petitioner's conviction under 18 U.S.C. § 2113(a)
would remain a crime of violence under the provision because
the offense qualifies under the use-of-physical-force clause
contained in § 924(c)(3)(A). An offense qualifies as a
crime of violence if it “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C. §
924(c)(3)(A). Petitioner's conviction, which by
definition involved taking or attempting to take from the
presence of another by force or violence a thing of value in
the care, custody, control, management, or possession of a
bank, 18 U.S.C. § 2113(a), categorically falls within
the scope of that provision. See, e.g., United
States v. McBride, No. 15-3759, 2016 WL 3209496, at *2
(6th Cir. June 10, 2016) (finding that federal bank robbery,
in violation of 18 U.S.C. § 2113(a), which can be
committed “by force and violence, or by intimidation,
” falls within Section 4B1.2(a)'s
use-of-physical-force clause); accord In re Watt,
No. 16-14675, 2016 WL 3941083, at *1 (11th Cir. July 21,
2016) (explaining that a violation of 18 U.S.C. §
2114(a) would constitute a crime of violence under §
924(c)(3)(A)); United States v. Enoch, No. 15-cr-66,
2015 WL 6407763, at *3 (E.D. Ill. Oct. 21, 2015) (concluding
violations of 18 U.S.C. § 2114(a) categorically
qualified as crimes of violence under § 924(c)(3)(A),
the use-of-physical-force clause); United States v.
Mitchell, 743 F.3d 1054, 1058-60 (6th Cir. 2014)
(finding that Tennessee robbery, which can be committed
“by violence or putting the person in fear, ”
categorically qualifies as a violent felony under the
use-of-physical-force clause). As a result, the
Johnson decision is inapposite.
reasons discussed, Petitioner's § 2255 motion [Doc.
42] will be DENIED and DISMISSED WITH PREJUDICE. The Court
will CERTIFY any appeal from this action would not be taken
in good faith and would be totally frivolous. Therefore, this
Court will DENY Petitioner leave to proceed in forma
pauperis on appeal. See Rule 24 of the Federal
Rules of Appellate Procedure. Petitioner having failed to
make a substantial showing of the denial of a constitutional
right, a certificate of appealability SHALL NOT ISSUE. 28
U.S.C. § 2253; Fed. R. App. P. 22(b).
APPROPRIATE ORDER WILL ENTER.
 The Court finds that it need not
determine whether the petition is timely under §
2255(f)(1) because, even if the § 2255 motion was filed
within the applicable one-year statute of limitations, the
Johnson decision does not ...