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.

Sexton v. United States

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

May 22, 2018

JACK PERSHING SEXTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          Robert S. Lasnik United States District Judge

         This matter comes before the Court on petitioner Jack Pershing Sexton's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Dkts. ## 1, 12. 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.

         I. BACKGROUND

         After an eight-day trial, 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)). Case No. CR11-383RSL, Dkt. # 163. The presentence report (PSR) concluded that petitioner was eligible for a sentencing enhancement as a “career offender” under Sentencing Guideline § 4B1.1(a) because his instant and prior convictions of armed bank robbery qualified as “crime[s] of violence.” CR Dkt. # 153 ¶ 46. The Guidelines generated a recommended sentence of 262 to 327 months, to be served consecutive to a 684- month mandatory minimum sentence for use of a firearm during and in relation to a crime of violence. At sentencing, the Court sentenced petitioner to a total of 840 months' imprisonment. CR Dkt. # 163. Petitioner's conviction and sentence were affirmed on appeal. See United States v. Sexton, 586 Fed.Appx. 304 (9th Cir. 2014).

         On March 21, 2016, petitioner filed a pro se motion under 28 U.S.C. § 2255, challenging his conviction and sentence on multiple grounds. The Court later entered a sua sponte order appointing counsel to assist petitioner with a § 2255 claim pursuant to the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015). Counsel filed an amended § 2255 motion on petitioner's Johnson claim. Dkt. # 12. The Court then stayed resolution of petitioner's motion pending the Ninth Circuit's decision in United States v. Watson, 881 F.3d 782 (9th Cir. 2018) (per curiam), which considered whether armed bank robbery is a “crime of violence” for purposes of 18 U.S.C. § 924(c).

         II. DISCUSSION

         A. Johnson Claim

         Section 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).

         Here, 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), and Welch v. United States, 136 S.Ct. 1257 (2016), which found Johnson retroactive on collateral review. Petitioner thus argues that 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 one could theoretically be convicted of armed bank robbery without intentionally using, threatening to use, or attempting to use physical force.

         The Ninth Circuit's decision in Watson forecloses petitioner's claim. 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 residual clause's constitutionality. 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.

         Watson resolves petitioner's Johnson claim. Petitioner's conviction for armed bank robbery is a proper basis for his conviction and sentence under § 924(c).

         B. Sentencing Guidelines

         Petitioner also relies on Johnson to dispute the Court's finding that he is a career offender under the Sentencing Guidelines. The Guidelines provide that a defendant is a career offender if, among other factors, “the defendant has at least two prior felony convictions of . . . a crime of violence” and “the instant offense of conviction is a felony that is . . . a crime of violence.” U.S.S.G. § 4B1.1(a). Like § 924(c), the Guidelines provide two definitions of a crime of violence. The first, which mirrors the force clause of § 924(c), defines a crime of violence as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). The second definition, at the time petitioner was sentenced, was nearly identical to the residual clause invalidated in Johnson. See id. § 4B1.2(a)(2) (2012). According to petitioner, armed bank robbery is not a crime of violence under the Guidelines, because Johnson renders § 4B1.2(a)'s residual clause unconstitutionally vague.

         Petitioner's Guidelines challenge fails. Under longstanding Ninth Circuit precedent, petitioner's conviction of armed bank robbery qualifies as a “crime of violence” for purposes of § 4B1.2(a)'s force clause. United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). Moreover, the Supreme Court has expressly foreclosed the very Johnson claim petitioner raises. Beckles v. United States, 137 S.Ct. 886 (2017). “Because they merely guide the district courts' discretion, ” the Beckles Court explained, the Guidelines, including ยง 4B1.2(a)'s residual clause, are not subject to vagueness ...


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.