Jeffrey James Dennis v. United States of America

Filing 13

ORDER by Judge Terry J. Hatter, Jr., that the motion to vacate Petitioner's sentence under 18 USC 924(c) be, and hereby is, Denied.It is Further Ordered that Petitioner's request for a certificate of appealability pursuant to 28 USC 2253(c)(2) be, and hereby is, Denied. (Made JS-6. Case Terminated.) (jp)

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1 2 3 4 5 6 7 United States District Court Central District of California Western Division 8 9 10 11 12 JEFFREY JAMES DENNIS, 13 Petitioner, 14 15 16 CV 16-09611 TJH CR 98-00556 MMM Order v. UNITED STATES OF AMERICA, Respondent. JS-6 17 18 19 The Court has considered Petitioner Jeffrey James Dennis’s motion to vacate, set 20 aside, or correct his sentence under 28 U.S.C. § 2255 or, in the alternative, request for 21 a certificate of appealability as to his claim pursuant to 28 U.S.C. § 2253(c)(2), together 22 with the moving and opposing papers. 23 24 Petitioner challenges his sentence under 18 U.S.C. § 924(c), which is predicated on armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). 25 Section 924(c) defines “crime of violence” under § 924(c)(3)(A) [the “Force 26 Clause”] and § 924(c)(3)(B) [the “Residual Clause”]. This Court held that the Residual 27 Clause is unconstitutionally vague, and that certain convictions — convictions that, 28 under the categorical approach, see Taylor v. United States, 495 U.S. 575 (1990), fall Order – Page 1 of 3 1 outside the Force Clause because the statutory elements of the conviction include 2 conduct falling outside the Force Clause’s definition of a “crime of violence” — must 3 be vacated. See Juan Becerra-Perez v. United States, No. 2:16-cv-07046-TJH (C.D. 4 Cal. Feb. 15, 2017). The Force Clause defines a “crime of violence” as a felony that 5 “has as an element the use, attempted use, or threatened use of physical force against 6 the person or property of another[.]” § 924(c)(3)(A). 7 Sections 2113 (a) and (d) are crimes of violence under the Force Clause defined 8 in § 924(c)(3)(A). United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000). 9 Since Wright, the Ninth Circuit has reaffirmed that armed bank robbery qualifies as a 10 crime of violence under the Force Clause. United States v. Pritchard, No. 15-50278, 11 2017 WL 2219005, at *1 (9th Cir. May 18, 2017). Subsection (a) provides for a felony 12 conviction for bank robberies and incidental crimes committed “by force and violence, 13 or by intimidation.” 18 U.S.C. § 2113(a) (emphasis added). The Ninth Circuit has 14 defined intimidation under § 2113 to mean “wilfully to take, or attempt to take, in such 15 a way that would put an ordinary, reasonable person in fear of bodily harm,” which 16 comports with the requirement of a “threatened use of physical force” contained in the 17 Force Clause. United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). 18 Similarly, subsection (d) includes “putting in jeopardy the life of any person by 19 the use of a dangerous weapon or device.” 18 U.S.C. § 2113(d). As such, even the 20 most innocent conduct penalized under this section would qualify as a crime of 21 violence. See United States v. Watson, No. 14-00751 01 DKW, 2016 WL 866298, at 22 *7 (D. Haw. Mar. 2, 2016). Therefore, both subsections (a) and (d) fall within the 23 definition of a crime of violence under 18 U.S.C. § 924(c)(3)(A). Watson, 2016 WL 24 866298, at *7. This conclusion is, further, supported by decisions in this Circuit 25 reaching the same result. See, e.g., McFarland v. United States,No. CV 16-7166-JFW, 26 2017 WL 810267, at *4 (C.D. Cal. Mar. 1, 2017); United States v. Salinas, No. 1:08 27 CR 0338 LJO SKO, 2017 WL 2671059, at *7 (E.D. Cal. June 21, 2017). 28 A district court may issue a certificate of appealability “only if the applicant has Order – Page 2 of 3 1 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2 2253(c)(2). Such a showing requires the petitioner to “demonstrate that the issues are 3 debatable among jurists of reason; that a court could resolve the issues [in a different 4 manner]; or that the questions are adequate to deserve encouragement to proceed 5 further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (alterations in 6 original, emphasis omitted). Petitioner has not made a substantial showing of the denial 7 of a constitutional right under any of the above bases. 8 9 Accordingly, 10 11 12 It is Ordered that the motion to vacate Petitioner’s sentence under 18 U.S.C. § 924(c) be, and hereby is, Denied. 13 14 15 It is Further Ordered that Petitioner’s request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) be, and hereby is, Denied. 16 17 Date: July 26, 2017 18 ___________________________________ 19 Terry J. Hatter, Jr. Senior United States District Judge 20 21 22 23 24 25 26 27 28 Order – Page 3 of 3

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