Evans v. United States of America

Filing 6

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

FILED
2018 Jan-03 PM 03:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MAXIE DOYAL EVANS,
Movant,
V.
UNITED STATES OF AMERICA,
Respondents.

)
)
)
)
)
)
)
)
)

5:16-CV-8096-KOB

MEMORANDUM OPINION
The movant Maxie Doyal Evans filed a motion to vacate, set aside, or
correct his sentence on June 24, 2016, contending that the court should vacate his
conviction and sentence under 18 U.S.C. § 924(c) because armed 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. Evans
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 §
924(c). For the following reasons, the court refuses to extend Johnson beyond its
holding and finds that Mr. Evans’s motion to vacate is due to be DENIED.

1

Procedural History
Mr. Evans pled guilty on November 16, 2009 to one count of armed bank
robbery under 18 U.S.C. § 2113(a) and (d) and one count of brandishing a firearm
during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A). On
May 25, 2010, the court sentenced Mr. Evans to 37 months imprisonment for the
armed bank robbery and a consecutive term1 of 84 months for § 924(c) count.
(Doc. 18 in 5:09-cr-403). Mr. Evans did not appeal his conviction or sentence to
the Eleventh Circuit.
Mr. Evans filed his motion to vacate more than seven years later under 18
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 because armed bank robbery does not qualify as a “crime
of violence” under any definition in § 924(c), and that the Supreme Court in Welch
v. United States, 136 S. Ct. 1257 (2016) made the Johnson holding retroactive to
18 U.S.C. § 924(c)(1)(A) required the court to make the sentence under §
924(c) consecutive to the predicate offense, which was the armed bank robbery
count.
1

2

cases on collateral review.
The court ordered the Government to show cause why it should not grant
Mr. Evans 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. Evans’s predicate offense of armed bank robbery was a “crime 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. Evans an opportunity to
submit any additional materials and evidence before the court rendered its decision
without a hearing. (Doc. 5). Mr. Evans submitted no additional filings.
Unfortunately for Mr. Evans, Johnson does not apply to his case.
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 offenses 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:
3

(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
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. Evans, and the court did not
sentence him under the ACCA. Instead, Mr. Evans 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

4

(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. Evans 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,
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,
5

2017) (citing and discussing Ovalles, 861 F.3d at 1266). Therefore, Mr. Evans’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. Evans’s armed bank robbery conviction
would still qualify as a “crime of violence” under § 924(c)’s “use-of-force” 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-of-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).
Mr. Evans acknowledges the Eleventh Circuit’s Hines decision, but argues
that the opinion “gives very little analysis of the statute, however, and summarily
states that the statute requires as an element the use, attempted use, or threatened
use of physical force against the person or property of another.” (Doc. 23 at 3).
Even though Mr. Evans disagrees with the decision in Hines and asserts that the
Eleventh Circuit was in error in finding that armed bank robbery was not a crime
of violence under the “use-of-force” clause, this court’s hands are tied; this court
6

is bound by Eleventh Circuit precedent.
Therefore, the court finds that Mr. Evans 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

7