Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bolar v. United States

United States District Court, W.D. Washington, Seattle

April 28, 2017

DEREKYE MAURICE BOLAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION UNDER 28 U.S.C. § 2255

          Robert S. Lasnik United States District Judge.

         I. INTRODUCTION

         This matter comes before the Court on petitioner's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct A Sentence by a Person in Federal Custody, ” Dkt. # 1. Having reviewed the parties' briefing and the relevant record, the Court grants petitioner's motion for the reasons that follow.

         II. BACKGROUND

         In April 2010, pursuant to an agreement with the government, Case No. CR09-293RSL, Dkt. # 23, petitioner Derekye Maurice Bolar pled guilty to a set of charges arising from a series of robberies: seven counts of “pharmacy robbery” (Counts 1-7, under 18 U.S.C. § 2118(a)); one count of possession of a firearm in furtherance of a crime of violence (Count 8, under 18 U.S.C. § 924(c)(1)(A)(i)); and one count of felon in possession of a firearm (Count 9, under 18 U.S.C. § 922(g)(1)). Case No. CR09-293RSL, Dkt. # 26.

          In September 2010, the Court sentenced petitioner to 120 months in custody, comprising 60 months on the seven counts of pharmacy robbery and the count of felon in possession of a firearm, plus 60 months on the count of possession of a firearm in furtherance of a crime of violence. Case No. CR09-293RSL, Dkt. # 33 at 3. The statutory mandatory minimum penalty for the crime of possession of a firearm in furtherance of a crime of violence is 60 months' imprisonment, served consecutively. See 18 U.S.C. § 924(c)(1)(A)(i). Petitioner was also sentenced to five years of supervised release. Case No. CR09-293RSL, Dkt. # 33 at 3. Presumably pursuant to the appeal waiver in his plea agreement, see Case No. CR09-293RSL, Dkt. # 23 at 5, 8-9, petitioner did not appeal either his convictions or his sentence.

         On June 26, 2015, the Supreme Court invalidated as unconstitutionally vague the Armed Career Criminal Act's residual clause, which defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that . . . involves conduct that presents a serious potential risk of physical injury to another.” Johnson v. United States, 135 S.Ct. 2551, 2557 (2015). On April 18, 2016, the Supreme Court declared this holding retroactive in cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         On June 24, 2016, petitioner filed this motion under 28 U.S.C. § 2255, arguing that his conviction for possession of a firearm in furtherance of a crime of violence had been invalidated by the Supreme Court's holdings in Johnson and Welch because, after Johnson, the predicate crime of “pharmacy robbery” no longer qualifies as a “crime of violence.” Dkt. # 1. The government opposes petitioner's motion to vacate his sentence. Dkt. # 6.

         III. DISCUSSION

         Under 28 U.S.C. § 2255, a prisoner in federal custody may move the sentencing court to vacate, set aside, or correct his sentence where “the sentence was imposed in violation of the Constitution or laws of the United States, or [where] the court was without jurisdiction to impose such sentence, or [where] the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” Petitioner contends that his sentence was imposed in violation of the Constitution. Dkt. # 1 at 4. Because certain procedural aspects of petitioner's motion turn on resolution of the motion's merits, this order addresses the merits first.

         A. Pharmacy Robbery as a “Crime of Violence”

         Here, petitioner challenges the constitutionality of his confinement on the grounds that one of the statutes that he was convicted of violating incorporates language similar to the language that Johnson declared unconstitutionally vague. Specifically, 18 U.S.C. § 924(c)(1)(A) criminalizes the possession of a firearm in furtherance of a “crime of violence” and thus incorporates the following definition of that term at 18 U.S.C. § 924(c)(3):

an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that 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.

         As explained above, Johnson invalidated as unconstitutionally vague the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), which defined “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that . . . involves conduct that presents a serious potential risk of physical injury to another.” Johnson v. United States, 135 S.Ct. 2551, 2557 (2015) (emphasis added). The Ninth Circuit has since applied Johnson to invalidate the following clause ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.