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United States v. Bates

United States District Court, D. Nevada

May 22, 2017

The United States of America, Plaintiff
v.
Robert Arthur Bates, Defendant

          ORDER DENYING MOTION TO VACATE SENTENCE

          Jennifer A. Dorsey United States District Judge.

         Federal inmate Robert Bates was convicted of one count of federal bank robbery under 18 U.S.C. § 2113(a), one count of carjacking under 18 U.S.C. § 2119, and one count of violating 18 U.S.C.§ 924(c), which imposes a mandatory minimum sentence for using a firearm during a crime of violence. Bates received a 210-month sentence for the bank robbery, a 180-month concurrent sentence for the carjacking, plus an additional 84 months for the § 924(c) count. Bates contends that intervening law, particularly Johnson v. United States[1]-in which the Supreme Court struck down the residual clause of the Armed Career Criminal Act's crime-of-violence sentencing enhancement as unconstitutional-renders his § 924(c) conviction and sentence similarly invalid. Because the offense that triggered Bates's § 924(c) enhancement was federal carjacking, which qualifies as a crime of violence under 924(c)'s force clause regardless of the continued viability of 924(c)'s residual clause after Johnson, I deny his motion.

         Background

         In 1998, Bates was indicted for kidnapping a janitorial crew from their home, bringing them to a bank they cleaned, and then forcing them at gunpoint to setup a trap for an armored car so that Bates and his codefendants could rob it. When the armored car arrived at the bank, Bates and his codefendants ambushed the guards, shot one of them, then stole more than $1 million dollars.[2] Bates pled guilty to federal bank robbery under 18 U.S.C. § 2113(a), federal carjacking under U.S.C. § 2119, and using a firearm during a crime of violence (the federal carjacking) under 18 U.S.C.§ 924(c).[3]

         Section 924(c) criminalizes using or carrying a firearm in relation to a “crime of violence” and imposes mandatory, consecutive minimum sentences. Section 924(c) defines “crime of violence” in two ways. Section 924(c)(3)(A), also known as the statute's “force clause, ” includes a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Section 924(c)(3)(B), known as the “residual clause” of the statute, encompasses any felony offense “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.”

         In Johnson v. United States, the Supreme Court tested the constitutionality of the residual clause of another subsection of § 924-§ 924(e), known as the Armed Career Criminal Act (“ACCA”). Under the ACCA, “a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a ‘violent felony, ' a term defined to include any felony that ‘involves conduct that presents a serious potential risk of physical injury to another.'”[4] The High Court evaluated the clause's violent-felony definition using the “framework known as the categorical approach, ” which “assesses whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.'”[5] It concluded that “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates, ” and held it void for vagueness.[6] In Welch v. United States, the Court found that Johnson's holding is a substantive decision that is retroactive on collateral review.[7]

         Bates moves to vacate his sentence under 28 U.S.C. § 2255, arguing that Johnson renders his crime-of-violence enhancement under § 924(c) unconstitutional.[8] Even if I were to conclude that 924(c)'s residual clause is unconstitutional under Johnson, Bates's motion fails because his federal carjacking conviction qualifies as a crime of violence under section 924(c)'s force clause.

         Discussion

         A. Bates's federal carjacking conviction is a crime of violence.

         Section 924(c) enhances a defendant's sentence when a firearm is used during the commission of a “crime of violence.” The statute's force clause defines crimes of violence to include felonies that have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.”[9] Federal carjacking under 18 U.S.C. § 2119, the statute that Bates was convicted under, prohibits similar conduct: taking a motor vehicle “with the intent to cause death or serious bodily harm . . . from the person or presence of another by force and violence or by intimidation.”[10]

         Bates first focuses on the latter term, “intimidation, ” to argue that § 2119 can be violated by merely instilling “fear” in a victim. He concludes that merely instilling fear in a victim does not qualify as a crime of violence under § 924(c), which requires that the defendant “threatened” “use of physical force.”

         The Ninth Circuit rejected this very argument in United States v. Selfa in the context of the similarly worded federal bank robbery statute.[11] The court reasoned that “intimidation, ” read in conjunction with the requirement that the robbery must occur in the victim's presence, meant that the defendant placed his victim not just in fear generally, but fear of “bodily harm”-in other words, a threat of “physical force against” his person.[12]

         The Ninth Circuit has also rejected this argument in the context of deciding whether a conviction under the similarly-worded federal robbery statute qualifies as a crime of violence for purposes of § 924(c).[13] And I recently explained at length why that conviction qualifies as a crime of violence under § 924(c)'s force clause: by “placing someone ‘in fear of injury' to his person or property, ” the defendant uses the sort of “physical force” that satisfies § 924(c).[14] Although Bates is right that the Supreme Court has handed down a number of decisions that complicate this area of law, the Ninth Circuit has since affirmed all of these holdings in various unpublished decisions.[15]

         And I find no reason to treat federal carjacking any differently than federal robbery or federal bank robbery. Indeed, federal bank robbery and federal carjacking criminalize identical conduct: using “force and violence” or “intimidation” to rob someone.[16] Bates has not persuaded me that “intimidation” means something different in the carjacking statute than it does in the identically worded federal bank robbery statute.[17] And numerous district courts and other circuit courts have held that federal carjacking qualifies as a crime of violence under § 924(c)'s force clause after Johnson.[18]

         Bates finally argues that federal carjacking can be committed with de minimis force, which is not enough to be “violent force.”[19] I agree with the weight of authority that finds this argument “wholly unavailing.”[20] Even if there is some theoretical possibility that federal carjacking may be committed with de minimis force-and I am not persuaded there is-Bates must demonstrate that there is “a realistic probability, not a theoretical possibility” that this is so.[21] “To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the [ ] courts in fact did apply the statute in the . . . manner for which he argues.”[22] And Bates has not demonstrated a reasonable likelihood that anyone can be ...


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