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 Charles Thomas
Clagett, III's motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. Dkt. # 1. 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.
September 1997, a jury convicted petitioner of two counts of
armed bank robbery (in violation of 18 U.S.C. §§
2113(a) and (d)) and two counts of use of a firearm during
and in relation to a crime of violence (18 U.S.C. §
924(c)(1)). Case No. CR97-265RSL, Dkt. # 63. The
Honorable Barbara Jacobs Rothstein, United States District
Judge, sentenced petitioner to 370 months in custody,
including a 300-month mandatory consecutive sentence for use
of a firearm during a crime of violence. Section 924(c)(3)
defines a crime of violence as:
[A]n 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.
(A) of this definition is known as the “force clause,
” while clause (B) is known as the “residual
clause.” United States v. Watson, 881 F.3d
782, 784 (9th Cir. 2018). At sentencing, the Court did not
specify if it found petitioner's armed bank robbery
conviction to qualify as a crime of violence under §
924(c)'s force clause, residual clause, or both.
See Dkts. ## 5-1, 5-2.
direct appeal, the Ninth Circuit affirmed petitioner's
conviction and sentence in an unpublished memorandum
disposition. United States v. Clagett, No. 98-30161,
1999 WL 754406 (9th Cir. Sep. 23, 1999). In October 2000,
petitioner filed a motion to vacate his conviction and
sentence under 28 U.S.C. § 2255, on grounds unrelated to
those raised here. Case No. CV00-1816RSM, Dkt. # 1. The Court
denied petitioner's § 2255 motion. Id.,
Dkt. # 40.
then, the Supreme Court has handed down multiple decisions
that bear on § 924(c)'s definition of a crime of
violence. See Johnson v. United States (Johnson
I), 559 U.S. 133, 140 (2010) (construing the force
clause of the Armed Career Criminal Act (ACCA)); United
States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017)
(per curiam) (Johnson I standard applies to §
924(c)(3)'s similarly worded force clause). Most notably,
on June 26, 2015, the Supreme Court invalidated as
unconstitutionally vague the residual clause of the ACCA.
Johnson v. United States (Johnson II), 135
S.Ct. 2551, 2557 (2015). That clause defined a “violent
felony” as a felony “that . . . involves conduct
that presents a serious potential risk of physical injury to
another.” Id § 924(e)(2)(B). 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).
filed the instant § 2255 motion on May 23, 2016. He
argues that under Johnson II and Welch,
§ 924(c)(3)'s residual clause is void for vagueness.
As a result, petitioner asserts, the predicate offense of
armed bank robbery no longer qualifies as a crime of violence
for purposes of § 924(c), and his conviction and
sentence under § 924(c)(1) cannot stand.
armed bank robbery is a crime of violence within the meaning
of § 924(c)'s force clause, then any Johnson
II error is harmless, and petitioner is not entitled to
relief. To decide whether petitioner's conviction is a
crime of violence under the force clause, we look to the
substantive law on § 924(c)(3)(A) as it currently
stands. United States v. Geozos, 870 F.3d 890, 897
(9th Cir. 2017).
motion fails under the Ninth Circuit's decision in
Watson, 881 F.3d at 786, which reiterated
longstanding circuit precedent that declares armed bank
robbery a crime of violence under § 924(c)'s force
clause. See also United States v. Wright, 215 F.3d
1020, 1028 (9th Cir. 2000). Like petitioner, the
Watson petitioners argued that their § 924(c)
convictions were unlawful because the predicate offense-armed
bank robbery (18 U.S.C. § 2113)-did not qualify as a
crime of violence under either the force or residual clauses
after Johnson I and Johnson II. The court
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 meet the Johnson [I]
standard.” Watson, 881 F.3d at 785 (quoting
Gutierrez, 876 F.3d at 1257). Bank robbery by
intimidation also meets the mens rea requirement for a crime
of violence. Id. Accordingly, bank robbery under
§ 2113(a) categorically 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 motion. Petitioner's conviction
for armed bank robbery is a proper basis for his conviction
and sentence under § 924(c).