United States District Court, D. Nevada
January 4, 2017
UNITED STATES OF AMERICA, Plaintiff,
JEREMY JERMAIN SUGGS, Defendant.
C. JONES, United States District Judge
jury indicted Defendant Jeremy Suggs of armed bank robbery in
violation of 18 U.S.C. § 2113(a), (d) and possession of
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(i). (See
Indictment, ECF No. 1). Defendant pled guilty to both counts,
and on March 5, 2007 the Court sentenced him to consecutive
125- and 120-month terms of imprisonment, respectively, to be
followed by consecutive five- and three-year terms of
supervised release. (See J. 1-3, ECF No. 36). The
Court of Appeals affirmed the reasonableness of the sentences
but reversed for reentry of judgment with the terms of
supervised release to run concurrently. The Court entered an
Amended Judgment on March 19, 2008. (See Am. J. 13,
ECF No. 51). Defendant has now asked the Court to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
The motion is statutorily timely.
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
of . . . the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review . . . .
28 U.S.C. § 2255(f), (f)(3). Defendant filed the initial
motion on May 13, 2016, which is within one year of June 26,
2015, the date on which the Supreme Court announced the rule
of Johnson v. United States (Johnson II),
135 S.Ct. 2551 (2015) upon which Defendant relies. The
Supreme Court has made Johnson II retroactive on
collateral review. See Welch v. United States, 136
S.Ct. 1257, 1268 (2016). The motion is therefore statutorily
timely. It is procedurally defaulted, however, both because
Defendant made no vagueness-type objection at or before his
sentencing hearing and because he failed to raise the issue
argues that he is actually innocent of Count 2 (possessing a
firearm during a crime of violence), which if true would
excuse the default. See Massaro v. United States,
538 U.S. 500, 504 (2003); United States v. Ratigan,
351 F.3d 957, 962 (9th Cir. 2003). Specifically, he argues
the armed bank robbery charged in Count 1 that formed the
basis for Count 2 was not a “crime of violence”
under 18 U.S.C. § 924(c)(3) because the residual clause
defining “crime of violence” is similar to the
residual clause of § 924(e)(2), which the Supreme Court
has struck down as unconstitutionally vague. See Johnson
II, 135 S.Ct. at 2563. The definition of “crime of
violence” applied to Defendant reads as follows, with
the allegedly unconstitutionally vague residual clause
(3) For purposes of this subsection the term “crime of
violence” means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened
use of physical force against the person 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.
18 U.S.C. § 924(c)(3)(A)-(B) (emphasis added). The
definition of “violent felony” at issue in
Johnson II reads as follows, with the
unconstitutionally vague residual clause emphasized:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another
Id. § 924(e)(2)(B)(i)-(ii) (emphasis added).
clauses are not identical, but even assuming for the sake of
argument that the difference in language is not enough to
rescue § 924(c)(3)(B) from constitutional infirmity,
Johnson II is no aid to Defendant, because the
physical-force clause of § 924(c)(3)(A) applies to armed
bank robbery under § 2113(a). See United States v.
Wright, 215 F.3d 1020, 1028 (9th Cir.
2000). Although the Court of Appeals has not yet
ruled directly as to whether Johnson II abrogated
the rule that bank robbery categorically satisfies the
physical-force clause,  the courts of appeals to do so and the
district courts within this Circuit have uniformly ruled that
it did not. See United States v. McNeal, 818 F.3d
141, 151-57 (4th Cir. 2016); United States v.
McBride, 826 F.3d 293, 296 (6th Cir. 2016); United
States v. Armour, 840 F.3d 904, 909 (7th Cir. 2016);
Allen v. United States, 836 F.3d 894, 894-95 (8th
Cir. 2016); In re Sams, 830 F.3d 1234, 1238-39 (11th
Cir. 2016); United States v. McDuffy, __ F.Supp.3d
__, 2016 WL 3750655, at *3 (D. Nev. 2016) (Du, J.);
United States v. Daniels, No. 11-cr-470, 2016 WL
6680038, at *2-3 (S.D. Cal. Nov. 14, 2016); United States
v. Gilbert, No. 14-cr-634, 2016 WL 5807910, at *1-2
& n.1 (S.D. Cal. Oct. 20, 2016); United States v.
Abdul-Samad, No. 10-cr-2792, 2016 WL 5118456, at *4-5
(S.D. Cal. Sept. 21, 2016); United States v.
Charles, No. 3:06-cr-26, 2016 WL 4515923, at *1 (D.
Alaska Aug. 29, 2016); United States v. Watson, No.
14-cr-751, 2016 WL 866298, at *6 (D. Haw. Mar. 2, 2016). The
Court finds no basis to disagree.
the Court notes that Defendant's argument largely rests
on the requirement under Johnson v. United States
(Johnson I), 559 U.S. 133 (2010) that physical force
must be “violent, ” and that the Court of Appeals
has not addressed whether bank robbery under § 2113(a)
is a categorical crime of violence under that standard. The
Court disagrees, as do the Courts of Appeal to have addressed
the issue. See, e.g., Armour, 840 F.3d at 909.
Moreover, the present motion is simply not statutorily timely
as to any argument under Johnson I, but only as to
arguments under Johnson II.
HEREBY ORDERED that the Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF Nos.
55, 64) is DENIED.
FURTHER ORDERED that a certificate of appealability is
Although the Court of Appeals used the
term “armed” in Wright, it did so not
because only armed bank robbery under § 2113(d)
qualified as a crime of violence but because the defendant in
that case was challenging whether the offense of Using or
Carrying a Firearm During a Crime of Violence, i.e., armed
bank robbery, had been proved. The Court of Appeals'
analysis, however, clearly reasoned that simple bank robbery
under § 2113(a) qualified as a categorical crime of
violence under the physical force clause of §
924(c)(3)(A). See Id. (quoting 18 U.S.C. §
2113(a)) (“Armed bank robbery qualifies as a crime of
violence because one of the elements of the offense is a
taking ‘by force and violence, or by
intimidation.'”). The quoted offense element is
found in § 2113(a), i.e., simple bank robbery, without
reference to subsection (d), which simply provides enhanced
penalties for armed bank robbery. In any case, Defendant was
convicted of armed bank robbery.
The physical force clauses of
§§ 924(c)(3)(A) and 924(e)(2)(B)(i) are identical.