United States District Court, E.D. Washington
ORDER GRANTING § 2255 MOTION IN PART
FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE
the Court is Mr. Ratigan's 28 U.S.C. § 2255 Motion
to Vacate, Set Aside or Correct Sentence. ECF No. 310,
Ratigan was indicted for Conspiracy in Count 1S; Destruction
of Building used in Interstate Commerce by Arson in Count 6S,
Use of a Firearm during destruction of a building in Count
7S, Armed Bank Robbery in Count 8S, and Use of a Firearm
during an Armed Bank Robbery in Count 9S. A jury found Mr.
Ratigan guilty on all counts.
Court sentenced Mr. Ratigan to a total term of 663 months.
The sentences were broken down by count. The Court imposed
five years for Count 1S and 63 months for Counts 6S and 8S,
all to run concurrently. The Court imposed 30 years on Count
7S and 20 years for Count 9S. Sentences for Counts 7S and 9S
each run consecutively.
Ratigan timely appealed the judgment, and on March 3, 2000,
the Ninth Circuit issued a Mandate affirming this Court. ECF
No. 218. The Ninth Circuit granted Mr. Ratigan's
application for authorization to file second or successive 28
U.S.C. § 2255. ECF No. 314. The Government acknowledges
that the successive § 2255 is timely and that the Court
should reach the merits of Mr. Ratigan's claims.
Ratigan challenges his convictions for use of a firearm
during a crime of violence, Counts 7S and 9S. The Government
concedes that the § 924(c) conviction 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 Count 7S is vacated. Count 9S is
predicated on Armed Bank Robbery. Mr. Ratigan 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. Ratigan asks that the Court
find that Stokeling v. United States, effectively
overruled the reasoning in Watson. The Court
declines Mr. Ratigan's invitation for the reasons
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))
Ratigan 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.
Ratigan'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. Ratigan, 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
Ratigan's Motion to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody Pursuant to 28 U.S.C. §
2255, filed May 20, ...