United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
the court is Fred Bates' Motion to Vacate, Set Aside, or
Correct Sentence in Accordance with 28 U.S.C. § 2255
(Doc. No. 1), seeking to vacate the sentence entered upon his
2013 criminal conviction in United States v. Bates,
No. 3:09-cr-00062 (M.D. Tenn. April 13, 2010) (Judgment, Doc.
No. 52). Bates argues, based on Johnson v.
United States, 135 S.Ct. 2551 (2015), that his sentence
was unlawfully enhanced by the application of 18 U.S.C.
§ 924(c)'s mandatory sentence structure imposed when
a defendant possesses a firearm in furtherance of a
“crime of violence.” He asserts that his federal
offenses only qualified as crimes of violence under the now
unconstitutional definition of a crime of violence contained
in § 924(c)(3)(B). (Doc. No. 1, at 1.) Because Bates was
not convicted or sentenced under § 924(c)(3)(B), his
motion will be denied.
was charged in a Superseding Information with four counts of
armed bank robbery, in violation of 18 U.S.C. § 2113(a)
and (d), and one count (Count 2) of using, carrying, and
brandishing a firearm during and in relation to a crime of
violence (to wit, armed bank robbery), in violation of 18
U.S.C. § 924(c)(1)(A). (Crim. Doc. No. 38.) He pleaded
guilty to all five counts pursuant to a Petition to Enter a
Plea of Guilty and a Plea Agreement. (Crim. Doc. No. 51.)
This court sentenced him on April 5, 2010 to 48 months'
imprisonment on each of the bank robbery charges, to be
served concurrently with each other, and to a consecutive
term of 84 months, the mandatory minimum, on Count 2, for a
total sentence of 132 months, to be followed by 5 years of
supervised release. (Crim. Doc. No. 52.) Bates did not appeal
his conviction or sentence.
§ 2255 motion was filed, through counsel, on June 23,
2016. (Doc. No. 1.) The government responded (Doc. No. 9),
and the movant filed both a Reply and a Supplemental Reply
(Doc. Nos. 10, 11).
movant brings this action under 28 U.S.C. § 2255.
Section 2255 provides a statutory mechanism for challenging
the imposition of a federal sentence:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground 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, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). In order to obtain relief under
§ 2255, a petitioner “‘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.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)
(quoting Griffin v. United States, 330 F.3d 733, 736
(6th Cir. 2003)). A motion under § 2255 is ordinarily
subject to a one-year statute of limitations, running from
the date the underlying conviction became final. 28 U.S.C.
was convicted on four counts of armed bank robbery under 18
U.S.C. § 2113(a) and (d). Section 2113(a) proscribes
bank robbery “by force and violence, or by
intimidation.” Subsection (d) enhances the penalty for
any defendant who, in the course of a violation of subsection
(a), “assaults any person, or puts in jeopardy the life
of any person by the use of a dangerous weapon or
device.” 18 U.S.C. § 2113(d). The Superseding
Information in this case clearly charged Mr. Bates under
subsection (d), asserting in each of the four bank robbery
counts that he assaulted the bank employees and put their
lives in jeopardy by use of a dangerous weapon. (Crim. Doc.
law imposes a mandatory minimum consecutive sentence of seven
years upon any person who is convicted of
“brandishing” a firearm “during and in
relation to any crime of violence or drug trafficking crime .
. . for which the person may be prosecuted in a court of the
United States.” 18 U.S.C. § 924(c)(1)(A)(ii).
Section 924(c)(3) defines “crime of violence” as
an offense that is a felony and either (A) “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another”; or
(B) “by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.”
Id. § 924(c)(3)(A), (B). Subsection (A) is
known as the “elements” or
“use-of-force” clause, and subsection (B) is
referred to as the “residual” clause.
Bates argues that the residual clause, subsection (B), is
unconstitutionally vague and that armed bank robbery under
federal law only qualifies as a crime of violence under the
residual clause. He is partially right. The Supreme Court has
indeed held that the residual clause of § 924(c)(3)(B)
is unconstitutionally vague. United States v. Davis,
No. 18-421, 2019 WL 2570623 (June 24, 2019).
other hand, armed bank robbery under 18 U.S.C. § 2113(d)
clearly qualifies as a crime of violence under the
use-of-force clause of § 924(c)(3)(A). United States
v. Johnson, 899 F.3d 191, 203-04 (3d Cir. 2018)
(applying the categorical approach to find that a conviction
under § 2113(d) qualifies as a crime of violence under
§ 924(c)(3)(A), because “‘assault[ing]'
someone or putting a life in ‘jeopardy . . . by the use
of a dangerous weapon,' meets the elements clause: it
‘has as an element the use, attempted use, or
threatened use of physical force.'” (quoting 18
§§ 2113(d) and 924(c)(3)(A))), cert.
denied, 139 S.Ct. 647 (2018); United States v.
Watson, 881 F.3d 782, 786 (9th Cir. 2018) (per curiam)
(“Because bank robbery ‘by force and violence, or
by intimidation' is a crime of violence, so too is armed
bank robbery.”), cert. denied, 139 S.Ct. 203
(2018); United States v. Lloyd, 741 Fed.Appx. 570,
573 (10th Cir. 2018) (same, collecting cases), cert.
denied, 139 S.Ct. 1167 (2019). See also United
States v. Henry, 722 Fed.Appx. 496, 500 (6th Cir. 2018)