Bagwell v. USA, No. 1:2016cv00264 - Document 11 (D. Idaho 2018)

Court Description: MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs Motion to Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. § 2255 (Civ. Dkt. 2 , Crim. Dkt. 23) is DENIED. The Court shall issue a separate judgment as required by Rule 58(a). 2. 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 (cjs)

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Bagwell v. USA Doc. 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO CHARLES BENTON BAGWELL, Case No. 1:16-cv-00264-BLW 1:05-cr-00174-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. 2, Crim. Dkt. 23). For the reasons described below, the Court will deny the motion. BACKGROUND Petitioner Charles Benton Bagwell pleaded guilty on August 29, 2005 to six counts in two cases. See Plea Agreement, Crim. Dkt. 4; Minute Entry for Arraignment, Crim. Dkt. 9. In this case, which was transferred from the Central District of California, Petitioner pleaded guilty to two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d); brandishing a firearm during and in relation to a crime of violence, in violation of Title 18 U.S.C. § 924(c); and discharging a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). See id. In Case No. 1:05-cr-00132-BLW, Petitioner pleaded guilty to bank robbery conspiracy, in violation of 18 U.S.C. § 371 and MEMORANDUM DECISION AND ORDER - 1 Dockets.Justia.com §§ 2113(a) and (d), and armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). See id. Petitioner was convicted on all six counts, and sentenced on January 27, 2006 to a term of imprisonment of forty years, with the sentence for both cases to run concurrently. Judgment, Crim. Dkt. 18. Petitioner argues that in light of Johnson v. United States, 135 S.Ct. 2251 (2015) (“Johnson II”), his convictions under 18 U.S.C. § 924(c) are illegal and unconstitutional. Petitioner’s Br. at 4, Civ. Dkt 2, Crim. Dkt. 23. ANALYSIS 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.” United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018). 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). Section (A) is satisfied if the predicate crime of conviction has as an element the use of “‘violent’ physical force - ‘that is force capable of causing physical pain or injury.’” Watson, 881 F.3d at 784 ((quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson I”) and finding the standard applied therein to 18 U.S.C. § 924(e)(2)(B)(i) “applies equally to the similarly worded force clause of § 923(c)(3)(A).”). MEMORANDUM DECISION AND ORDER - 2 In Watson, the Ninth Circuit held that the force required to prove armed bank robbery in violation of 18 U.S.C. § 2113 meets the Johnson I standard for “violent force” and thus qualifies as a “crime of violence” under 18 U.S.C. § 924(c)(3)(A). Id. Thus, Petitioner’s conviction in this case on two counts of armed bank robbery constitute predicate “crimes of violence” under the “force clause” of § 924(c)(3)(A). See Watson, 881 F.3d at 784, 786. Although Petitioner argues that the residual clause in § 924(c)(3)(B) is unconstitutional under the reasoning of Johnson II, he concedes that § 924(c)(3)(A) remains good law. Because Petitioner’s argument that his predicate convictions for armed bank robbery do not qualify as “crimes of violence” under § 924(c)(3)(A) is foreclosed by Watson, Petitioner’s motion 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. 2, Crim. Dkt. 23) 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 - 3

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