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 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.
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).
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).
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),
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.
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.
resolves petitioner's Johnson claim.
Petitioner's conviction for armed bank robbery is a
proper basis for his conviction and sentence under §
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.
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
§ 4B1.2(a)'s residual clause, are not subject to