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United States v. Weilburg

United States District Court, D. Nevada

January 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER WEILBURG, Defendant.

          ORDER

          ROBERT C. JONES United States District Judge.

         A grand jury indicted Defendant Christopher Weilburg of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) and possessing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (See Indictment, ECF No. 1). Defendant pled guilty to both counts, and on March 7, 2011 the Court adjudged him guilty of both counts, sentencing him to 33 months and 10 years of imprisonment on those offenses, respectively, to be served consecutively both to each other and to the sentence imposed in Case No. CR10-0015 in the Second Judicial District Court of Washoe County, Nevada. (See J. 1-2, ECF No. 33). Plaintiff did not appeal. Plaintiff has now asked the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

         The Court finds that although the motion is statutorily timely, it is both procedurally defaulted and without merit even assuming the default is excused.

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 June 20, 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 appeal.

         Defendant 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 emphasized:

(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 adult, that--
(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 ...

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