Johnson v. USA, No. 1:2016cv00258 - Document 11 (D. Idaho 2018)

Court Description: MEMORANDUM DECISION & ORDER re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Bryan Mark Johnson. Plaintiff's Motion to Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. § 2255 (Civ. Dkt. 1 , Crim. Dkt. 60) is DENIED. This case is DISMISSED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

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Johnson v. USA Doc. 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO BRYAN MARK JOHNSON, Case No. 1:16-cv-00258-BLW 1:11-cr-00122-BLW Petitioner, v. UNITED STATES OF AMERICA, MEMORANDUM DECISION AND ORDER Respondent. INTRODUCTION Pending before the Court is Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1, Crim. Dkt. 60). For the reasons described below, the Court will deny the motion. BACKGROUND Petitioner Bryan Mark Johnson pleaded guilty on October 19, 2012 to four counts: bank robbery, in violation of 18 U.S.C. § 2113(a); armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g); and possession of a firearm in furtherance of bank robbery, in violation of 18 U.S.C. 924(c)(1)(A). See Plea Agreement, Crim. Dkt. 33; Minute Entry for Change of Plea Hearing, Crim. Dkt. 42. Petitioner was convicted on these counts, and sentenced on April 6, 2012. Judgment, Crim. Dkt. 58. At sentencing, the Court determined that Petitioner had committed at least three prior violent felonies, all for bank robbery in violation of 18 U.S.C. § 2113(a). Petitioner’s Br. at 3, Civ. Dkt. 1, Crim. Dkt. 60. The MEMORANDUM DECISION AND ORDER - 1 Dockets.Justia.com Court therefore found that Petitioner qualified as an Armed Career Criminal under 18 U.S.C. § 924(e), resulting in a guideline range of 188-235 months of imprisonment, plus a consecutive sentence for his conviction under 924(c). Id. at 3-4. Petitioner argues that in light of Johnson v. United States, 135 S.Ct. 2251 (2015) (“Johnson II”), his sentence is illegal and unconstitutional. Id. at 4. ANALYSIS Under the Armed Career Criminal Act, a defendant convicted of a violation of 18 U.S.C. § 922(g), who has at least three prior convictions for a “violent felony,” faces a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(1). A “violent felony” is defined as a felony 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [.] Id.§ 924(e)(2)(B). Section (i) is satisfied where a prior crime of conviction has as an element the use of “‘violent’ physical force – ‘that is force capable of causing physical pain or injury.’” See United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson I”) for its interpretation of § 924(e)(2)(B)(i)). MEMORANDUM DECISION AND ORDER - 2 Under 18 U.S.C. § 924(c), a defendant is subject to “a mandatory consecutive term of imprisonment for using or carrying a firearm during and in relation to a crime of violence.” Watson, 881 F.3d at 784. A “crime of violence” is defined as a felony that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property 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). Here again, Section (A) is satisfied if the predicate crime of conviction has as an element the use of “violent physical force” as defined in Johnson I. Watson, 881 F.3d at 784 (finding that the Johnson I standard for § 924(e)(2)(B)(i) “applies equally to the similarly worded force clause of § 923(c)(3)(A).”). In Watson, the Ninth Circuit held that the force required to prove both bank robbery and armed bank robbery under 18 U.S.C. § 2113 meets the Johnson I standard for “violent force” and thus each crime qualifies as a predicate “crime of violence” under 18 U.S.C. § 924(c)(3)(A). Id. By extension, both crimes also qualify as “violent felonies” under 18 U.S.C. § 924(e)(2)(B)(i). Id. (holding that the Johnson I definition of “violent force” applies equally to both clauses). Thus, Petitioner’s prior crimes of bank robbery qualify as “violent felonies” under the “elements clause” of § 924(e)(2)(B)(i) and his contemporaneous conviction for bank robbery constitutes a predicate “crime of violence” under the “force clause” of § MEMORANDUM DECISION AND ORDER - 3 924(c)(3)(A). See Watson, 881 F.3d at 784, 786. Because Johnson II invalidated the residual clause of § 924(e)(2)(B)(ii), Petitioner argues that it similarly invalidates the residual clause in § 924(c)(3(B). But, he concedes that § 924(e)(2)(B)(i) and § 924(c)(3)(A) remain good law. Although Petitioner argues that his prior and predicate crimes do not qualify under those sections because they fail to meet the Johnson I standard for “violent force,” that argument is foreclosed by Watson. Petitioner’s motion therefore fails on the merits, and the Court does not need to reach the issues raised by Johnson II. Accordingly, ORDER IT IS ORDERED: 1. Plaintiff’s Motion to Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. § 2255 (Civ. Dkt. 1, Crim. Dkt. 60) is DENIED. The Court shall issue a separate judgment as required by Rule 58(a). 2. This case is DISMISSED. DATED: May 23, 2018 _________________________ B. Lynn Winmill Chief U.S. District Court Judge MEMORANDUM DECISION AND ORDER - 4

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