Opinion
No. 2:12-CR-43-JRG-1 No. 2:16-CV-211-JRG
10-24-2016
TAMMY COPAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
Before the Court is Petitioner's pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Doc. 32]. She bases the request for relief on Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. The United States filed a response in opposition on September 13, 2016 [Doc. 34]. For the reasons that follow, the petition will be DENIED and DISMISSED WITH PREJUDICE.
I. BACKGROUND
In 2012, Petitioner used a gun to rob a Discount Tobacco Outlet and the La Perla restaurant [Doc. 20 p. 2]. She subsequently pled guilty to committing two Hobbs Act robberies, in violation of 18 U.S.C. § 1951, and using and brandishing a firearm during one of those robberies, in violation of 18 U.S.C. § 924(c) [Id. at 1]. She faced ranges of up to twenty years' imprisonment for each of the Hobbs Act robberies and a mandatory consecutive term of seven years up to life imprisonment for the § 924(c) offense [Id.]. Under Section 2B3.1 of the United States Sentencing Guidelines, Petitioner received a base offense level of twenty, which resulted in a total offense level of nineteen after a three-level reduction for acceptance of responsibility [Presentence Investigation Report ("PSR") ¶¶ 20-39]. When combined with her criminal history category of III, the total offense level resulted in a Guideline range of 37 to 46 months' imprisonment for the Hobbs Act robberies and 84 months' incarceration for the § 924(c) offense [PSR ¶ 85].
On January 22, 2013, the Court sentenced Petitioner to an aggregate term of 121 months' imprisonment [Doc. 30]. No appeal was taken and, as a result, Petitioner's conviction became final for purposes of § 2255(f)(1) on February 5, 2013. See Sanchez Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the time for filing a direct appeal has elapsed); Fed. R. App. P. 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within [fourteen]-days after . . . the entry of . . . judgment."). Over three years later—on June 24, 2016—Petitioner filed a § 2255 motion requesting sentencing relief under Johnson [Doc. 32].
II. ANALYSIS
Petitioner's argument that she no longer possesses predicate offenses sufficient to support categorization as an armed career criminal under the ACCA, career-offender under Section 4B1.1 of the United States Sentencing Guidelines, or an enhanced base offense level under Section 2K2.1(a) of the same fails because her PSR conclusively demonstrates that she was never subjected to any of these provisions [PSR ¶¶ 20-39, 85; Doc. 30].
The ACCA mandates a 15-year sentence for any felon who unlawfully possesses a firearm after having sustained three prior convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the "use-of-physical-force clause"); (2) "is burglary, arson, or extortion, involves the use of explosives" (the "enumerated-offense clause"); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). 18 U.S.C. § 924(e)(2)(B). It was this third clause—the residual clause—that the Supreme Court deemed unconstitutional in Johnson. 135 S. Ct. at 2563. Section 4B1.1 enhances a defendant's offense level if he or she qualifies as a "career offender," i.e., adult defendant whose offense of conviction is a "crime of violence or controlled substance offense" and who has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S. Sentencing Manual § 4B1.1(a). "Crime of violence" under the Guidelines is defined in an almost identical manner as "violent felony" under the ACCA. See U.S. Sentencing Manual § 4B1.2(a) (adopting identical use-of-force and residual clauses as well as a nearly identical enumerated-offense clause).
To the extent that she argues the Johnson decision invalidated the similarly-worded residual clause in § 924(c)(3)(B), thereby removing Hobbs Act robbery from the list of "crimes of violence" sufficient to support a conviction under § 924(c)(1)(A), [Doc. 106 (arguing that he is entitled to vacatur of her § 924(c) convictions)], her argument fails for two reasons.
First, binding Sixth Circuit precedent holds that while Johnson invalidated the residual provision of the ACCA and identically worded clause in Section 4B1.2 of the United States Sentencing Guidelines, § 924(c)(3)(B)'s definition of crime of violence remains unaffected. See United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (concluding "rationale of Johnson applies equally" to the Guidelines' definition of crime of violence); United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016) (recognizing at least four "significant differences" between the residual clause in § 924(c)(3)(B) and the ACCA's residual clause and noting "the argument that Johnson effectively invalidated [the former] is . . . without merit"). As such, Hobbs Act robbery remains a crime of violence capable of supporting her conviction under § 924(c)(1)(A).
Section 924(c)(1)(A) makes it a crime for an individual, "in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, [to] use[,] carr[y] [or possess] a firearm . . . in furtherance of . . . such crime." 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) goes on to define "crime of violence" as any "felony" that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (use-of-physical-force clause); or "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" ("residual clause"). --------
Second, even if Johnson's reasoning could be used to invalidate § 924(c)(3)(B)'s residual clause, Petitioner's conviction for Hobbs Act robbery would remain a crime of violence under the provision because it qualifies under the use-of-physical-force clause contained in § 924(c)(3)(A). An offense qualifies as a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Petitioner's conviction for Hobbs Act robbery, which by definition involves the taking of property "by means of actual or threatened force, or violence, or fear of injury," 18 U.S.C. § 1951(b)(1), categorically falls within the scope of that provision. See, e.g., In re Fleur, No. 16-12299, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (finding, post-Johnson, that Hobbs Act robbery categorically qualifies as a crime of violence under the use-of-physical-force clause in 18 U.S.C. § 924(c)(3)(A)); United States v. Howard, No. 15-10042, 2016 WL 2961978, at *1 (9th Cir. May 23, 2016) (same); accord United States v. House, No. 14-3011, 2016 WL 3144735, at *3 (8th Cir. June 2016) (finding that Hobbs Act robbery categorically qualifies as a "serious violent felony" under 18 U.S.C. § 3559(c)(2)(F)(ii)'s use-of-physical-force clause); United States v. McBride, No. 15-3759, 2016 WL 3209496, at *2 (6th Cir. June 10, 2016) (finding that federal bank robbery, in violation of 18 U.S.C. § 2113(a), which can be committed "by force and violence, or by intimidation," falls within the Section 4B1.2(a)'s use-of-physical-force clause); United States v. Mitchell, 743 F.3d 1054, 1058-60 (6th Cir. 2014) (finding that Tennessee robbery, which can be committed "by violence or putting the person in fear," categorically qualifies as a violent felony under the ACCA's use-of-physical-force clause). In light of the foregoing, Johnson is inapposite and thus cannot operate as a basis for relief.
IV. CONCLUSION
For the reasons discussed, Petitioner's § 2255 motion [Doc. 32] will be DENIED and DISMISSED WITH PREJUDICE. The Court will CERTIFY any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the Federal Rules of Appellate Procedure.
AN APPROPRIATE ORDER WILL ENTER.
s/ J. RONNIE GREER
UNITED STATES DISTRICT JUDGE