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United States v. Parks

United States District Court, D. Nevada

May 9, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
VINCENT GEORGE PARKS, Defendant/Petitioner.

          ORDER

          Kent J. Dawson, United States District Judge.

         Presently before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#271). The Government filed a response (#273) to which Petitioner replied (#274). Also before the Court is Petitioner's Emergency Motion for Bail (#268). The Government filed a response (#273) to which Petitioner replied (#274). Also before the Court is Petitioner's Motion for Appointment of Counsel (#265). Also before the Court is Petitioner's Motion to Strike Government's Pleadings (#275). The Government filed a response (#276). Also before the Court is Petitioner's Motion to Expand Record and Grant Motions (#281).

         I. Background

         Following a jury trial, Petitioner was found guilty of: Count 1: conspiracy, a violation of 18 U.S.C. § 371; Count 2: armed bank robbery, a violation of 18 U.S.C. §§ 2113(a), 2113(d), (2), and 3559(c)(1)(A)(i); Count 3: use of a firearm during and in relation to a crime of violence, a violation of §§ 924(c) and (2); and Count 5: felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g) and 924(a)(2). In September 2000, Petitioner was sentenced to a term of 60 months as to Count 1, a mandatory term of life as to Count 2, and 120 months as to Count 5, all running concurrently. Petitioner was also sentenced to a term of 60 months as to Count 3 to run consecutively with the previous three counts.

         Petitioner appealed his sentence, and the Ninth Circuit affirmed. See U.S. v. Parks, 285 F.3d 1133 (9th Cir. 2002). In 2005, this Court denied Petitioner's first Motion to Vacate Sentence under § 2255. In June 2016, Petitioner filed the present successive § 2255 motion upon the authorization of the Ninth Circuit. The Ninth Circuit found Petitioner has made a prima facia showing for relief under Johnson v. United States, 135 S.Ct. 2551 (2015), and it authorized the filing of this motion with respect to the question of whether Petitioner is entitled to relief under Johnson.[1] Petitioner argues that in light of Johnson, he is no longer subject to his conviction and corresponding sentence under 18 U.S.C. § 924(c), nor his mandatory life sentence imposed under 18 U.S.C. § 3559(c)(1).

         II. Analysis

         A. Federal Armed Bank Robbery is a Crime of Violence

         Petitioner's challenge to his conviction and sentence under 18 U.S.C. § 924(c) fails because armed bank robbery is a qualifying crime of violence. After the Ninth Circuit authorized Petitioner's successive § 2255 motion, it decided United States v. Watson, 881 F.3d 782 (9th Cir. 2018), which foreclosed all Johnson challenges regarding armed bank robbery under § 924(c). In Watson, the court was faced with the question of “whether armed bank robbery under federal law is a crime of violence under 18 U.S.C. § 924(c).” Watson, 881 F.3d at 783-84. In response to this question, the Ninth Circuit straightforwardly stated, “We hold that it is.” Id.

         The Ninth Circuit elaborated, stating, “[B]ank robbery qualifies as a crime of violence because even its least violent form ‘requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard.'” Id. at 785 (quoting U.S. v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017)). “Because bank robbery ‘by force and violence, or by intimidation' is a crime of violence, so too is armed bank robbery. A conviction for armed bank robbery requires proof of all the elements of unarmed bank robbery.” Id. at 786 (quoting U.S. v. Coleman, 208 F.3d 786, 793 (9th Cir. 2000)). Thus, armed bank robbery is definitively a crime of violence under 18 U.S.C. § 924(c), and Petitioner's challenge to his corresponding conviction and imposed sentence fails.

         B. Federal Armed Bank Robbery is an Enumerated “Serious Violent Felony”

         18 U.S.C. § 3559(c)(1) imposes mandatory life imprisonment on a defendant convicted of a “serious violent felony, ” if that defendant has been convicted on separate occasions of two or more “serious violent felonies.” The statute enumerates certain federal crimes that qualify as “serious violent felonies, ” and also provides a general definition for other crimes that qualify. The statute specifically enumerates federal armed bank robbery in violation of 18 U.S.C. § 2113 as a “serious violent felony.” Petitioner's instant offense, along with his two prior “serious violent felonies” were federal armed bank robbery convictions, in violation of 18 U.S.C. § 2113. Therefore, Petitioner's 18 U.S.C. § 3559(c)(1) mandatory life sentence is unaffected by Johnson's holding regarding the unconstitutionality of the residual clause, and it must stand.

         C. Certificate of Appealability

         In order for Petitioner to assert a right to appeal this final order, he must first warrant a certificate of appealability. 28 U.S.C. §2253(b), (c)(1). To do so, Petitioner must make “a substantial showing of the denial of a constitutional right, ” and “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

         Petitioner has not demonstrated a substantial showing of the denial of a constitutional right, and reasonable jurists would not debate that Petitioner's motion lacks merit. With regard to Defendant's challenge to his conviction and sentence under 18 U.S.C. § 924(c), Watson is binding precedent on this Court, and directly rejects Defendant's argument. Further, as the Ninth Circuit noted in Watson, “in so holding, [it] joined every other circuit to address the same question.” Id. at 785. Regarding Petitioner's challenge to his sentence under 18 U.S.C. ยง 3559(c)(1), there is no question Petitioner's prior convictions ...


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