Collier v. United States, No. 17-2402 (2d Cir. 2021)
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The Second Circuit affirmed the district court's denial of petitioner's 28 U.S.C. 2255 motion, seeking vacatur of his 1998 conviction for possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A). After holding the decision in this case pending disposition of other cases presenting related questions, the court concluded that attempted federal bank robbery under 18 U.S.C. 2113(a), which requires that the attempt be made "by force and violence, or by intimidation," is categorically a crime of violence for purposes of section 924(c)(1) pursuant to United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), cert. denied, 140 S. Ct. 870 (2020).
Furthermore, in light of the court's recent decision in Nunez v. United States, 954 F.3d 465, 471 (2d Cir. 2020), the court found untimely and declined to reach the merits of defendant's additional arguments related to his sentencing under U.S.S.G. 4B1.2. In Nunez, the court held that the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015), did not recognize a constitutional right not to be sentenced under the residual clause of the pre-Booker Career Offender Guideline. Therefore, the court concluded that defendant's petition is untimely insofar as it challenges his sentence under that pre-Booker Guideline: the right he now asserts has not yet been recognized by the Supreme Court. The court explained that no decision newly announced and now made retroactive excuses him from meeting the one-year time limitation set out in section 2255(f).
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