Rice v. United States of America
Filing
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MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 1/24/17. (SMH)
FILED
2017 Jan-24 PM 01:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
GABRIEL RICE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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CASE NO. 1:15-CV-8045-SLB
CRIM. CASE NO. 1:08-CR-0334-SLB-HGD
MEMORANDUM OPINION
This case is presently pending before the court on petitioner Gabriel Rice’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [hereinafter Motion to Vacate]. (Doc. 1; crim. doc. 30; doc. 12.)1 Citing Mathis
v. United States, 136 S. Ct. 2243 (2016), and Johnson v. United States, 135 S. Ct. 2551
(2015), Rice contends he was improperly sentenced under 18 U.S.C. § 924(c). Because
binding Eleventh Circuit precedent bars Rice’s claims on the merits, the court assumes that
his Motion to Vacate is timely filed and is not procedurally barred. For the reasons set forth
below, the court finds that Rice’s Motion to Vacate is due to be denied.
On August 26, 2008, an Indictment was filed against Rice. (Crim. Doc. 7.) The
Indictment charged:
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Citations to documents in the court’s record in petitioner’s Motion to Vacate appear
as “(Doc. __).” Citations to documents in the court’s record in the criminal proceedings
against petitioner, Case No. 1:08-CR-0334-SLB-HGD, appear as “(Crim. Doc. __).” Page
number citations refer to the page numbers assigned to the document by the court’s CM/ECF
electronic filing system.
COUNT ONE: [18 U.S.C. § 2113(a) and (d)]
The Grand Jury charges that:
On or about the 16th day of July, 2008, in Calhoun County, within the
Northern District of Alabama, the defendant,
GABRIEL DEWAYNE RICE,
did knowingly, intentionally, and unlawfully, by force, violence and
intimidation take from the person and presence of another, money, that is,
approximately $325,168 in United States currency, belonging to and in the
care, custody, control, management, and possession of Wachovia Bank, the
deposits of which were then insured by the Federal Deposit Insurance
Corporation (F.D.I.C), and in committing such offense, the defendant did
assault and put in jeopardy the life of another person, by the use of a firearm,
in violation of Title 18, United States Code, Sections 2113(a) and (d).
COUNT TWO: [18 U.S.C. § 924(c)(1)(A)]
The Grand Jury charges that:
On or about the 16th day of July, 2008, in Calhoun County, within the
Northern District of Alabama, the defendant,
GABRIEL DEWAYNE RICE,
did knowingly use and carry a firearm during and in relation to a crime of
violence for which he may be prosecuted in a court of the United States, that
is, Bank Robbery, as charged in Count One of this indictment, in violation of
Title 18, United States Code, Section 924(c)(1)(A).
COUNT THREE: [18 U.S.C. § 2119]
The Grand Jury charges that:
On or about the 16th day of July, 2008, in Calhoun County, within the
Northern District of Alabama, the defendant,
GABRIEL DEWAYNE RICE,
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with the intent to cause death and serious bodily harm, did knowingly take a
motor vehicle from the person and presence of another by force and violence
and by intimidation, said vehicle being a Nissan Altima, which had been
previously transported, shipped, and received in interstate and foreign
commerce, in violation of Title 18, United States Code, Section 2119.
COUNT FOUR: [18 U.S.C. § 924(c)(1)(A)]
The Grand Jury charges that:
On or about the 16th day of July, 2008, in Calhoun County, within the
Northern District of Alabama, the defendant,
GABRIEL DEWAYNE RICE,
did knowingly use and carry a firearm during and in relation to a crime of
violence for which he may be prosecuted in a court of the United States, that
being, Carjacking, as charged in Count Three of this indictment, in violation
of Title 18, United States Code, Section 924(c)(1)(A).
(Id.)
Rice signed a Plea Agreement, in which he stipulated the following facts were
“substantially correct”:
On July 16, 2008, two black males entered the Wachovia Bank
[Footnote], . . . Anniston, Alabama, wearing stockings over their faces [and]
displaying handguns. One of these individuals, the defendant, GABRIEL
DEWAYNE RICE, jumped over the bank teller counter and pointed his
weapon at bank employees and demanded to know which employee was the
bank manager. He then placed his weapon at the back of the manager's neck
and instructed her to open the vault. The other male also jumped over the
counter and was gathering money from various locations near the teller
counter. The defendant filled a pillowcase with money from the vault. Both
individuals exited the bank and fled in a stolen vehicle, a 1992 green Honda
Civic.
[Footnote:] The deposits of the Wachovia Bank were then insured by
the FDIC.
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The defendant and his accomplice drove a short distance from the bank
where they abandoned the stolen vehicle in the driveway of a residence. They
fled on foot, jumping over fences, and hid underneath a boat and trailer.
Shortly thereafter, the accomplice approached a Nissan Altima, a
vehicle which had been manufactured outside of Alabama, which was parked
nearby and occupied by two women. The accomplice pointed his weapon at
the two women and demanded the women to drive across the street and pick
up the defendant. The defendant entered the vehicle carrying the pillowcase
containing the stolen currency and while still possessing a firearm. The
defendant and his accomplice instructed the women to drive them to the
Gadsden, Alabama area. During this time frame, the accomplice told the
women that he would kill them if they did not comply with his demands. The
defendant and his accomplice jumped out of the vehicle at a rural area near
Glencoe, Alabama. The defendant and his accomplice took the victims’ cell
phone and identification as they fled the vehicle.
The victims then drove to the Glencoe City Hall and reported the crime.
Investigators who searched the scene of the abduction in Anniston recovered
$20,525 of the stolen bank money next to one of the fences that the defendant
and his accomplice had jumped over.
The surveillance camera in the bank captured a clear image [of] the
defendant’s face during the robbery. This picture was shown to several people
who were familiar with the defendant and they positively identified the
defendant in the photograph. A federal arrest warrant was then obtained for
the defendant.
The defendant was arrested on July 27, 2008, near Cartersville,
Georgia. Recovered from the defendant was $26,850 in currency. After being
Mirandized, the defendant gave a voluntary statement admitting his
involvement in the armed bank robbery and the carjacking.
(Crim. Doc. 13 at 3-5.) As part of his Plea Agreement, the Government dismissed Count
Four of the Indictment. (Id. at 1, Crim. Doc. 25 at 1.)
Rice’s plea of guilty to Counts One, Two, and Three was accepted. (Minute Entry,
1:08-CR-0334-SLB-HGD, October 28, 2008.) On September 4, 2009, Rice was sentenced
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to a custodial sentence of 141 months on each of Counts One and Three, separately, to be
served concurrently, and to a custodial sentence of 63 months as to Count Two, to be served
consecutive to the sentence for Counts One and Three. (Crim. Doc. 25 at 2.) He did not
appeal this Judgment.
On November 20, 2015, Rice, who is proceeding pro se, filed the instant Motion to
Vacate. (Crim. Doc. 30; Doc. 1.) He later supplemented his Motion to Vacate, citing
Mathis v. United States, 136 S. Ct. 2243 (2016). (Doc. 12.)
Rice contends, “[Section] 924(c) is non-existent in light of U.S. v. Johnson. . . . The
924(c) residual clause is the same [as the residual clause of § 924(e)] invalidated in ACCA
as of U.S. v. Johnson . . . . Therefore [the court] lacks subject matter jurisdiction and [Rice’s
sentence] violates the 6th and 8th Amendments.” (Doc. 1 at 4.) He contends that the armed
bank robbery statute of conviction, 18 U.S.C. § 2113(a) and (d), is indivisible and cannot be
considered a crime of violence because bank robbery can be committed without the use of
force or violence. (See doc. 12; doc. 13 at 2-3.)
Section 2113(a) and (d) state:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another, or obtains or attempts to obtain
by extortion any property or money or any other thing of value belonging to,
or in the care, custody, control, management, or possession of, any bank,
credit union, or any savings and loan association; . . .
...
Shall be fined under this title or imprisoned not more than twenty years, or
both.
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...
(d) Whoever, in committing, or in attempting to commit, any offense defined
in subsections (a) . . . of this section, assaults any person, or puts in jeopardy
the life of any person by the use of a dangerous weapon or device, shall be
fined under this title or imprisoned not more than twenty-five years, or both.
18 U.S.C. § 2113(a), (d)(emphasis added). In addition to pleading guilty to armed bank
robbery, Rice pled guilty to brandishing a firearm in relation to a crime of violence – armed
bank robbery charged in Count One – in violation of § 924(c). This statute states:
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any person who,
during and in relation to any crime of violence . . . for which the person may
be prosecuted in a court of the United States, uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence –
...
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years . . . .
...
(3) For purposes of this subsection the term “crime of violence” means an
offense that is a felony and –
(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.
(4) For purposes of this subsection, the term “brandish” means, with respect
to a firearm, to display all or part of the firearm, or otherwise make the
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presence of the firearm known to another person, in order to intimidate that
person, regardless of whether the firearm is directly visible to that person.
18 U.S.C. § 924(c)(1), (3)-(4)(emphasis added).
In cases binding on this court, the Eleventh Circuit has established that armed bank
robbery, 18 U.S.C. § 2113(a) and (d), is a crime of violence under the use-of-force clause,
18 U.S.C. § 924(c)(3)(A), and that Johnson, which invalidated the residual clause under the
ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is inapplicable. The Eleventh Circuit has held:
As noted, Johnson rendered the residual clause of § 924(e) invalid. It
spoke not at all about the validity of the definition of a crime of violence
found in § 924(c)(3). Further, our Court has not held that Johnson invalidates
§ 924(c)(3)(B). However, even were we to extrapolate from the Johnson
holding a conclusion that § 924(c)(3)(B) was also unconstitutional, it would
not help Hines because his § 924(c) conviction on Count 2 was explicitly
based on his companion Count 1 conviction for armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d). And a conviction for armed bank
robbery clearly meets the requirement for an underlying felony offense, as set
out in § 924(c)(3)(A), which requires the underlying offense to include as an
element, “the use, attempted use, or threatened use of physical force against
the person or property of another.”
Here, Count 1 charged that Hines “by force, violence and intimidation,
did take from the person or presence of [a teller] monies belong to [a
federally-insured bank]” and that in doing so, Hines “did assault and put in
jeopardy the life of [two individuals] by use of a dangerous weapon,” all in
violation of 18 U.S.C. § 2113(a) and (d). These allegations in the indictment
mimic the requirements of § 2113 (a) and (d). The statutory elements that
these allegations of the indictment repeat clearly meet § 924(c)(3)(A)'s
requirement that the underlying felony offense must have “as an element the
use, attempted use, or threatened use of physical force against the person or
property of another.”
This means that Hines's conviction under § 924(c) would be valid even
if Johnson renders the “crime of violence” definition in § 924(c)(3)(B)
unconstitutional.
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In re Hines, 824 F.3d 1334, 1336-37 (11th Cir. 2016)(footnotes omitted).
The court finds Rice’s claims are indistinguishable from the claims in Hines.
Therefore, the court finds that Rice is not entitled to relief from his sentence based on
Johnson. In light of his plea of guilty to Count One of the Indictment, charging armed bank
robbery in violation of § 2113(a) and (d), and Count Two, charging brandishing a firearm
during a crime of violence, § 924(c), as well as binding Eleventh Circuit caselaw holding
that armed bank robbery is a crime of violence under § 924(c)(3)(A), Rice cannot show that
his sentence violates the Constitution or laws of the United States. See 28 U.S.C. § 2255(a).
Therefore, his Motion to Vacate based on Johnson will be denied.
Rice also argues that his sentence is due to be vacated based on the Supreme Court’s
decision in Mathis v. United States, 136 S. Ct. 2243 (2016). He contends that the armed
bank robbery “statute list[s] ways of committing the offense by violence and by fear [or]
non-violence [or] intimidation and thus the [S]upreme [C]ourt has not interpreted fear as
always causing bodily injury . . . during a robbery. . . . The predicate or instant offense is
outside the scope of 924(e)(2)(b)2 [the Armed Career Criminal Act or ACCA] because
defendant can commit the charge by other means [than] violence.” (Doc. 12 at 1.)
The Mathis decision “articulated how to interpret and apply the ACCA’s enumerated
crimes provision.” United States v. Gundy, 842 F.3d 1156, 1161 (11th Cir. 2016).
According to the Eleventh Circuit, “Mathis . . . drove home the point that focusing on the
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Rice was not sentenced under § 924(e).
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elements of the statute of conviction is, and always has been, the essential principle
governing ACCA cases: ‘For more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only, comparing elements.’” Id. (quoting
Mathis, 136 S. Ct. at 2257). Rice’s sentence was not based on or in any way related to an
ACCA sentence enhancement based on the enumerated-crimes clause.
Rice was sentenced under § 924(c) for brandishing a firearm during a crime of
violence, armed bank robbery in violation of § 2113(a) and (d). Applying a categorical
approach espoused in Mathis to the armed bank robbery statute and brandishing statute,3 the
court finds, “The statutory elements [of § 2113(a) and (d)] clearly meet § 924(c)(3)(A)’s
requirement that the underlying felony offense must have “as an element the use, attempted
use, or threatened use of physical force against the person or property of another.” Hines,
824 F.3d at 1337. Rice’s argument to the contrary is rejected.
Therefore, his Motion to Vacate based on Mathis will be denied.
3
The court notes that the Third Circuit has held that the categorical approach is not
always appropriate in § 924(c) cases. See United States v. Robinson, No. 15-1402, 2016
WL 7336609, at *4-5 (3d Cir. Dec. 19, 2016)(“Because the determination of whether a
particular crime qualifies as a ‘crime of violence’ under § 924(c) depends upon both the
predicate offense . . . and the contemporaneous conviction under § 924(c), the § 924(c)
conviction will shed light on the means by which the predicate offense was committed.
Looking at a contemporaneous conviction allows a court to determine the basis for a
defendant’s predicate conviction. The defendant suffers no prejudice because the court is
not finding any new facts which are not of record in the case before it. . . . [W]e do not
direct courts to speculate as to facts. The only facts that may support the conclusion that a
particular crime is a ‘crime of violence’ are those that have either been found by the jury or
admitted by the defendant in a plea.”). The Eleventh Circuit applies a categorical approach
to determine whether the underlying offense is a “crime of violence” for purposes of §
924(c). United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013).
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CONCLUSION
Based on the foregoing, the Motion to Vacate, as amended, filed by petitioner Gabriel
Rice, (crim. doc. 30; doc. 1; doc. 12), is due to be denied. An Order denying the Motion
to Vacate and dismissing Rice’s habeas petition will be entered contemporaneously with this
Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or
a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2)(emphasis added).
To make a substantial showing of the denial of a
constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).
Rice’s habeas petition is barred by binding Eleventh Circuit precedent; reasonable
jurists could not disagree. Rice has not demonstrated that the issue he raises is reasonably
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debatable and/or deserves encouragement to proceed further. Therefore, issuance of a
certificate of appealability is not warranted in this case.
DONE this 24th day of January, 2017.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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