United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
S. Lasnik, United States District Judge
matter comes before the Court on petitioner Ronald Claude
Kettels' motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence. Dkts. ## 1, 6. The Court
has considered the parties' memoranda, the exhibits, and
the remainder of the record.For the reasons set forth below,
the motion is DENIED.
March 27, 2013, a jury convicted petitioner of one count of
conspiracy to commit bank robbery (in violation of 18 U.S.C.
§ 371), three counts of armed bank robbery (18 U.S.C.
§§ 2113(a) and (d)), and three counts of use of a
firearm during and in relation to a crime of violence (18
U.S.C. § 924(c)(1)(A)(ii)). No. CR11-383RSL, Dkt. # 149.
The Court sentenced petitioner to 840 months'
imprisonment, including a 684-month mandatory consecutive
sentence for use of a firearm during and in relation to a
crime of violence. Id. at Dkt. # 165.
Petitioner's conviction and sentence were affirmed on
appeal. See United States v. Kettels, 586 Fed.Appx.
304 (9th Cir. 2014).
13, 2016, petitioner filed a pro se motion under 28 U.S.C.
§ 2255. Petitioner argued that under the Supreme
Court's decision in United States v. Johnson,
135 S.Ct. 2551 (2015), armed bank robbery is not a
“crime of violence” for purposes of §
924(c). The Court assigned counsel, and petitioner filed an
amended § 2255 motion. The Court then stayed resolution
of petitioner's motions pending the Ninth Circuit's
decision in United States v. Watson, 881 F.3d 782
(9th Cir. 2018) (per curiam), which considered the same
issues petitioner raises.
924(c) imposes a mandatory consecutive term of imprisonment
for using or carrying a firearm “during and in relation
to a crime of violence.” 18 U.S.C. § 924(c)(1)(A).
The statute provides two definitions of a crime of violence.
Under § 924(c)'s so-called “force”
clause, a crime of violence is a felony that “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.”
Id § 924(c)(3)(A). Under § 924(c)'s
“residual” clause, a crime of violence is a
felony “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.”
Id. § 924(c)(3)(B).
petitioner argues that armed bank robbery does not satisfy
either definition of a crime of violence. He first contends
that the residual clause is unconstitutionally vague under
Johnson, which invalidated a similar clause in the
Armed Career Criminal Act, id § 924(e)(2)(B).
Accordingly, petitioner argues, the residual clause cannot
support his conviction and sentence under § 924(c).
Additionally, petitioner maintains that armed bank robbery
does not constitute a crime of violence under the force
clause, because it does not categorically entail the use or
threatened use of physical force.
Ninth Circuit's decision in Watson forecloses
petitioner's arguments. Like petitioner, the
Watson petitioners argued that their convictions for
using a firearm during a crime of violence were unlawful
because the predicate offense-armed bank robbery (18 U.S.C.
§ 2113)-did not qualify as a crime of violence for
purposes of § 924(c). The court squarely rejected that
argument, without reaching the constitutionality of the
residual clause. Even the least violent form of bank
robbery-bank robbery by intimidation-“requires at least
an implicit threat to use the type of violent physical
force” necessary to satisfy the force clause.
Watson, 881 F.3d at 785 (quoting United States
v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) (per
curiam)). Bank robbery by intimidation also meets the mens
rea requirement for a crime of violence. Id.
Therefore, bank robbery under § 2113(a) invariably
qualifies as a crime of violence for purposes of §
924(c). Because an armed bank robbery conviction under
§§ 2113(a) and (d) “cannot be based on
conduct that involves less force than an unarmed bank robbery
requires, ” armed bank robbery also constitutes a crime
of violence under § 924(c). Id. at 786.
resolves petitioner's motions. Petitioner's
conviction for armed bank robbery is a proper basis for his
conviction and sentence for using or carrying a firearm
during and in relation to a crime of violence.
Court finds that petitioner has not demonstrated that his
sentence should be vacated, set aside, or corrected. His
petition is accordingly DENIED. The Court further finds that
no evidentiary hearing is required because the record
conclusively shows petitioner is not entitled to relief.
See 28 U.S.C. § 2255(b). Likewise, petitioner
has not substantially shown a denial of constitutional
rights, and the Court concludes no certificate of
appealability should issue. See Id. §
foregoing reasons, the Court ORDERS:
Petitioner's motion, Dkt. ## 1, ...