Oliver v. United States of America

Filing 10

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 1/3/18. (SAC )

FILED
2018 Jan-03 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TAVARES ANTWAN OLIVER,
Movant,
V.
UNITED STATES OF AMERICA,
Respondent.

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5:16-CV-8036-KOB

MEMORANDUM OPINION
The movant Tavares Antwan Oliver filed a motion to vacate, set aside, or
correct his sentence on April 29, 2016,1 contending that the court should vacate his
conviction and sentence under 18 U.S.C. § 924(c) because armed bank robbery no
longer qualifies as a “violent felony” after the Supreme Court’s decision in United
States v. Johnson, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court struck
down the “residual clause” in 18 U.S.C. § 924(e) of the Armed Career Criminal
Act (ACCA) as unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Mr. Oliver
urges this court to extend the holding in Johnson regarding the unconstitutionally
vague “residual clause” in § 924(e) to the similar “risk-of-force” clause found in §

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Pursuant to the prisoner “mailbox rule,” the court deems the petition filed the date the
petitioner signed it and purportedly delivered it to prison officials. See Jeffries v. United States,
748 F.3d 1310, 1313, 1314 (11th Cir. 2014).
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924(c). For the following reasons, the court refuses to extend Johnson beyond its
holding and finds that Mr. Oliver’s motion to vacate is due to be DENIED.
Procedural History
Mr. Oliver pled guilty on May 14, 2012 to two counts of armed bank
robbery under 18 U.S.C. § 2113(a) and (d), two counts of brandishing a firearm
during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii),
and one count of bank robbery under 18 U.S.C. § 2113(a) and 2(a).2 On
November 5, 2012, the court sentenced Mr. Oliver to 77 months imprisonment for
the armed bank robbery and robbery counts and a consecutive term3 of 84 months
for one of the § 924(c) counts and another consecutive term of 300 months for the
other § 924(c) count, for a total of 461 months imprisonment. (Doc. 21 in 5:12-cr125). Mr. Oliver appealed his sentence to the Eleventh Circuit, which affirmed the
district court’s sentence on July 16, 2013. (Doc. 30 in 5:12-cr-125).
Mr. Oliver filed his motion to vacate almost three years later under 18

On August 6, 2012, Mr. Oliver filed a motion to withdraw his plea of
guilty. After a hearing, the court denied his motion on August 29, 2012. The
Eleventh Circuit affirmed the denial of his motion to withdraw his plea. (Docs.
10, 30 in 5:12-cr-125).
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18 U.S.C. § 924(c)(1)(A) required the court to make the sentences under §
924(c) consecutive to the predicate offenses, which were the armed bank robbery
counts.
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U.S.C. § 2255(f)(3), which allows a petitioner to file a motion to vacate within one
year from “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.” He claims that the
Supreme Court’s decision in Johnson makes his conviction and sentence under §
924(c) unconstitutional, and that the Supreme Court in Welch v. United States, 136
S. Ct. 1257 (2016) made the Johnson holding retroactive to cases on collateral
review.
The court ordered the Government to show cause why it should not grant
Mr. Oliver the relief he seeks (doc. 2), and the Government responded, arguing
that the decision in Johnson did not apply or, alternatively, was of no consequence
because Mr. Oliver’s predicate offenses of armed bank robbery were “crimes of
violence” under the “elements clause” that the Supreme Court did not invalidate in
Johnson (doc. 4). After reviewing the Government’s response, the court issued its
“Order Regarding Summary Disposition,” giving Mr. Oliver an opportunity to
submit any additional materials and evidence before the court rendered its decision
without a hearing. (Doc. 5). Mr. Oliver then submitted his reply to the
Government’s response (doc. 7) and filed three motions to amend or supplement
his habeas motion with case law decided by other circuits that do not deal with
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armed bank robbery as a predicate offense. See (Docs. 6, 8, & 9). Nevertheless,
unfortunately for Mr. Oliver, Johnson does not apply to his case and his motions
to amend or supplement would be futile.
Discussion
In Johnson, the Supreme Court found the “residual clause” of the ACCA, 18
U.S.C. § 924(e), unconstitutionally vague. Under the ACCA, a defendant
convicted as a felon in possession of a firearm under 18 U.S.C. § 922(g) and who
has three prior “violent felonies” or serious drug offense faces an enhanced
mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e)(1). Section
924(e) defines a “violent felony” as any crime punishable by a term of
imprisonment exceeding one year 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.
18 U.S.C. § 924(e)(2)(B). The first clause of the definition is the “elements
clause,” while the second clause contains the “enumerated crimes” and the
“residual clause” that involves the “serious potential risk of physical injury to
another.” See Unites States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). The

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Supreme Court in Johnson found the “residual clause” of the ACCA “violent
felony” definition unconstitutionally vague, but left in tact the “elements clause”
and the “enumerated crimes.” Johnson, 135 S. Ct. at 2563.
However, the ACCA does not apply to Mr. Oliver, and the court did not
sentence him under the ACCA. Instead, Mr. Oliver was convicted under § 924(c),
which provides for a consecutive sentence for a defendant who brandishes a
firearm during and in relation to a drug trafficking crime or a “crime of violence.”
See 18 U.S.C. § 924(c)(1)(A). A “crime of violence” under § 924(c) includes 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 of another 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). Subsection (A) is known as the “use-of-force” or
“elements clause,” while subsection (B) is referred to as the “risk-of-force” or
“residual clause.” Ovalles v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017).
Mr. Oliver wants this court to apply the Supreme Court’s holding in
Johnson regarding the unconstitutionality of the residual clause of the ACCA to §
924(c)’s similar “risk-of-force” definition of a “crime of violence.” However,
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Eleventh Circuit precedent prevents the court from extending Johnson’s holding to
§ 924(c).
Recently, in June 2017, the Eleventh Circuit in Ovalles concluded that the
holding in Johnson “does not apply to or invalidate § 924(c)(3)(B).” Ovalles, 861
F.3d at 1259. The Court in Ovalles specifically held that the “risk-of-force” or
“residual clause” in § 924(c)(3)(B) is not unconstitutionally vague. Id. at 1267. In
making its determination in Ovalles, the Eleventh Circuit noted the “material
textual differences” between the definitions in § 924(e) and § 924(c) and held that
the “textual and application differences between § 924(c) and § 924(e) allow §
924(c)’s ‘risk-of-force’ clause to withstand attack under Johnson.” Council v.
United States, ___ F. App’x ___, 2017 WL 5988450, *1 (11th Cir. December 4,
2017) (citing and discussing Ovalles, 861 F.3d at 1266). Therefore, Mr. Oliver’s
reliance on Johnson as the basis for his motion to vacate fails.
Moreover, even assuming arguendo that Johnson’s holding did invalidate
the “risk-of-force” clause in § 924(c), Mr. Oliver’s armed bank robbery
convictions would still qualify as “crimes of violence” under § 924(c)’s “use-offorce” or “elements clause,” which was left unscathed by the Johnson decision.
The Eleventh Circuit in In re Hines unequivocally held that armed bank robbery
under 18 U.S.C. § 2113(a) and (d) is a “crime of violence” under the “use-of6

force” clause in § 924(c) and that Johnson’s invalidation of the residual clause has
no effect when the predicate offense is armed bank robbery. In re Hines, 824 F.3d
1334, 1336-37 (11th Cir. 2016); see also Rice v. United States, 2017 WL 345533
(N.D. Ala. 2017) (J. Blackburn).
Therefore, the court finds that Mr. Oliver is not entitled to relief from his
sentence based on the Supreme Court’s holding in Johnson and his motion to
vacate is due to be denied.
The court will enter a separate Order in conformity with this Memorandum
Opinion.
DONE and ORDERED this 3rd day of January, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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