United States District Court, E.D. Washington
ORDER GRANTING § 2255 MOTION IN PART
FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE
the Court is Mr. Berry's 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct Sentence. ECF No. 456.
Berry was indicted and convicted by a jury for Conspiracy
(Count 1), two counts of Transportation of a Stolen Vehicle
(Counts 10 and 11), and Possession of an Unregistered Grenade
(Count 12). The jury reached no decision on Counts 2 - 9. The
Government filed a Superseding Indictment alleging Conspiracy
in Count 1S; Destruction of Building used in Interstate
Commerce by Arson in Counts 2S and 6S, Use of a Firearm
during an Arson in Counts 3S and 7S, Use of a Firearm during
an Armed Bank Robbery in Counts 5S and 9S, and Armed Bank
Robbery in Counts 4S and 8S. A jury found Mr. Berry guilty on
Court sentenced Mr. Berry to a total term of life. The
sentences were broken down by count. The Court imposed five
years for Count 1, 262 months for Counts 4S, and 8S, 20 years
each for Counts 2S and 6S, and 10 years on Counts 10 - 12,
all to run concurrently. The Court imposed 30 years on Count
3S; life without the opportunity for release for Count 5S and
Count 7S, and 20 years for Count 9S. Sentences for Counts 3S,
5S, 7S, and 9S all run consecutively.
Berry timely appealed the judgment and on June 21, 1999, the
Ninth Circuit issued a Mandate affirming this Court. ECF No.
342. The Ninth Circuit granted Mr. Berry's application
for authorization to file second or successive 28 U.S.C.
§ 2255. ECF No. 449. The Government acknowledges that
the successive § 2255 is timely and that the Court
should reach the merits of Mr. Berry's claims.
Berry challenges his convictions for use of a firearm during
a crime of violence, Counts 3S, 5S, 7S, and 9S. The
Government concedes that the § 924(c) convictions
predicated on 18 U.S.C. § 844(i) should be vacated as
Destruction of a Building does not qualify as a crime of
violence. Accordingly, convictions for Counts 3S and 7S are
vacated. Counts 5S and 9S are predicated on Armed Bank
Robbery. Mr. Berry argues that Armed Bank Robbery does not
meet the force requirements to qualify as a crime of
violence. The Government disagrees, citing the Ninth Circuit
case United States v. Watson, which held that Armed
Bank Robbery qualifies as a crime of violence for the
purposes of § 924(c). 881 F.3d 782 (9th Cir. 2018). Mr.
Berry asks that the Court find that Stokeling v. United
States, effectively overruled the reasoning in
Watson. The Court declines Mr. Berry's
invitation for the reasons explained below.
person commits Bank Robbery when "by force and violence,
or by intimidation, takes, or attempts to take, from the
person or presence of another. . . any property or money . .
. in the custody . . . of any bank. . . ." 18 U.S.C.
§ 2113(a). If "in committing, or in attempting to
commit, any offense defined in subsection (a). . . of this
section" a person "assaults any person, or puts in
jeopardy the life of any person by the use of a dangerous
weapon or device" the person has committed Armed Bank
Robbery. Defendant questions whether the quantum of force
required to convict a person of Armed Bank Robbery qualifies
as "physical force" for the purposes of the
elements clause of 18 U.S.C. § 924(c). To satisfy the
elements clause, a "violent felony" must have
"as an element the use, attempted use, or threatened use
of physical force against the person of another." 18
U.S.C. § 924(c)(i).
Watson, the Ninth Circuit determined that Armed Bank
Robbery under § 2113 (a) and (d) requires "violent
physical force" as well as meeting the mens rea
requirements necessary to "qualif[y] as a crime of
violence under § 924(c). . . ." Watson,
881 F.3d at 786. The Ninth Circuit specifically addressed the
quantum of force required for "intimidation"
finding that even post-Johnson
"intimidation" requires sufficient force to qualify
as a crime of violence. Id. at 785. See also
United States v. Gutierrez, 876 F.3d 1254 (9th Cir.
2017) ("We, too, have held that 'intimidation'
as used in the federal bank robbery statute requires that a
person take property in such a way that would put an
ordinary, reasonable person in fear of bodily harm, which
necessarily entails the threatened use of physical force. As
a result, in our court, too, federal bank robbery constitutes
a crime of violence. We have not addressed in a published
decision whether Selfa's holding remains sound
after Johnson, but we think it does. A defendant
cannot put a reasonable person in fear of bodily harm without
threatening to use force capable of causing physical pain or
injury." (internal citations omitted))
Berry argues that Stokeling v. United States
effectively overruled the Ninth Circuit's ruling in
Watson because in Stokeling the Supreme
Court required more force than "intimidation" to
satisfy the elements clause. The Court disagrees with Mr.
Berry's reasoning. In Stokeling, the Supreme
Court noted that "Congress made clear that the
'force' required for common-law robbery would be
sufficient to justify an enhanced sentence under the new
elements clause." Stokeling v. United States,
139 S.Ct. 544, 551 (2019). The federal robbery statute, like
the bank robbery statute, can be violated "by force and
violence, or by intimidation." 18 U.S.C. § 2111.
The Supreme Court concluded that "it would be anomalous
to read 'force' as excluding the
quintessential ACCA-predicate crime of robbery, despite the
amendment's retention of the term 'force' and its
stated intent to expand the number of qualifying
offenses." Stokeling, 139 S.Ct. at 551
(emphasis original). Mr. Berry, however, asks this Court to
do just that, interpret the Federal statute for robbery in
such a way as to exclude it from the elements clause of
§ 924(c). The Court declines to do so, and instead
adopts the Ninth Circuit's conclusion that
intimidation" requires a sufficient amount of force to
satisfy the elements clause of § 924(c).
Court has reviewed the file and Movant's Motion and is
fully informed. Accordingly, IT IS ORDERED
Berry's Motion to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody Pursuant to 28 U.S.C. §
2255, filed May 3, 2016, ECF No. 456, is GRANTED IN PART.
Convictions for counts 3S and 7S are